Minnett v. Milwaukee & St. P. Ry. Co.

17 F. Cas. 449, 3 Dill. 460

• Court: U.S. Circuit Court for the District of Minnesota
• Decided: July 1, 1875
• Status: Published

Opinion

NELSON, District Judge.

1. If the defendant complied with the law in force at the time it presented the petition, affidavits and security, it was entitled to have the suit removed, and the judge of the state court had no discretion in the premises. The petition makes no allusion to any particular act of congress, but states that the petitioner is a citizen of the state of Wisconsin, and the plaintiff a citizen of the state of Minnesota; alleges the amount sought to be recovered sufficiently large to give the federal court jurisdiction, and in terms embraces all that is set forth and necessary to be done under the third subdivision of section 639, Rev. St

These statutes embrace all the laws in force December 1, 1873, as revised and consolidated; and section 639 contains all the provisions of the several previous acts relating to the removal of suits from the state to the federal court The only change made is in the act of 1S67, by transposition of the words in the phrase, “at any time before the final hearing or trial,” so as to read, “at any time before the trial or final hearing.”

The notice of the motion which was served upon the plaintiff’s attorney states that the removal is demanded under the act of 1867, which was technically repealed at the time the defendant presented its petition. The right of removal, however, does not depend upon the contents of the notice of the motion for removal; and the state court, as before stated, could not withhold the removal if the existing law in' regard to the petition, affidavits, and security was complied with. This court is also bound to retain jurisdiction of the suit under such circumstances.

2. In my opinion, the allegation in the petition, that there has been no final hearing or trial of the cause, is a compliance, substantially, with the third subdivision of section 639, which gives the right of removal at any time before “the trial or final hearing;” and corporations being within its purview, any proper officer — particularly the president, who is the head of the organization — could make the requisite affidavit.

3. The other question necessary to be determined is whether,“there having been' a trial upon the merits, the defendant is entitled to a removál of the action, a new trial having been granted. The statute requires the petition to be filed before “the trial or final hearing of the cause;” and it is urged that a trial on the merits prevents the removal of the case. “The trial” mentioned in the act, in my opinion, means, not “one trial.” or “a trial,” but a determination of the rights of the parties forever. When a new trial was granted, the suit was in the same position that it would have been had no trial taken place; the first trial had been erroneous — it had not been in accordance with the law, and there had'been no such examination of the rights involved as was contemplated by congress in using the word “trial.” Again “the trial” mentioned in the act means a final investigation of the rights involved in the court of original jurisdiction.

The terms “the trial,” and “final hearing” are used by congress as having a relative connection — a reciprocal meaning — the former applicable to actions at law, an'd the latter to equity cases. The word “suit” embraces actions at law as well as equity cases, and the conjunction “or” connecting the words “the trial” and “final hearing” is used, as it often is, where it is sought to give an explanation or definition of the same thing in different words. Such must be'the true construction of the law, for it is hardly probable that a distinction would be made between actions at law and equity causes, which would present a strange anomaly as suggested by Mr. Justice Swayne in Insurance Co. v. Dunn, 19 Wall. [86 U. S.] 226, that “in- equity cases a final bearing only could take away the right of removal, while any trial, however interlocutory in its character, should have the same effect in an action at law.” To avoid this the supreme judicial court of Massachusetts, in Galpin v. Critchlow [112 Mass. 339], construing the law of 1867, which used the language “before the final hearing or trial,” said the “ ‘trial’ appropriately designates a trial by jury of an issue which will determine the facts in an action at law, and ‘final hearing,’ in contradistinction to hearings upon interlocutory matters, the hearing of the cause upon its merits by a judge sitting in equity.”

The supreme judicial court of New Hampshire, in Whittier v. Hartford Ins. Co. [55 N. H. 141], agree to the judgment in the Massachusetts case, and consider the reasoning in that applicable to the law as it appears in section 639, par. 3. With great respect for these courts, I cannot agree to their interpretation of the statute. In' equity practice the term “healing” has a well defined meaning, viz: “that stage or proceedings in an equity cause which corresponds to a trial of a cause at law; the hearing of counsel upon the pleadings and proofs.” The qualifying adjective “final” makes this “hearing” one that absolutely ends the matter in dispute, and is explanatory of the words “the trial.” This case is certainly within the spirit of the law, and in my opinion within its letter. The motion to remand is denied. Motion denied.