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ing been so made in a State where by statute the party could still demand, as of right, a second trial, held, that such trial was not a 'final trial' within the meaning of the act of congress; the party seeking to remove the case having demanded and having got leave to have a second trial under the said statute of the State." Insurance Company v. Dunn, 19 Wall., 214.
In this case the party applying for the removal in the State court appeared and defended the suit there, after a removal had been refused, but this it was held gave the court no jurisdiction, as jurisdiction cannot be acquired by consent. Id. See, also, Gordon v. Longest, 16 Pet., 97; Kanouse . Martin, 14 How., 23; Same la Same, 15 Id., 198, as to consent.
The application must be made to a court of original jurisdiction.-But under the same provision it was held, that it only authorized a removal of a cause from a State court of original jurisdiction; and that where a case is pending on appeal in the Supreme Court of a State, a party cannot file a petition for removal therein, under such provision. Stevenson 0. Williams, 19 Wall., 572. And after one trial the right to a second must be perfected before a party is entitled to a transfer of a suit. Vannever v. Bryant, 21 Wall., 41.
Instance where the case was held not removable.-In a case where the plaintiff is a citizen of the State where the suit is brought, and two of the defendants are citizens of other States, a third defendant being a citizen of the same State as the plaintiff, it was held that the case was not removable to the circuit court under this provision, upon the petition of the two non-resident defendants. Case of the Sewing Machine Companies, 18 Wall., 553.
The restriction, in case of assigned contracts, not applicable in case of removal.- The restriction in the judicial act, giving original jurisdiction to the circuit courts, but providing that they shall not “have cognizance of any suit to recover the contents of any promissory note or other chose in action in favor of an assignee, unless a suit might have been prosecuted in such court to recover the said contents if no assignment had been made," (the act of 1875 § 1, substitutes for the above restriction: "Nor shall any circuit or district court have cognizance of any suit founded on contract in favor of the assignee, unless a suit might have been prosecuted in such court to recover thereon if no assignment had been made, except in cases of promissory notes negotiable by the law merchant and bills of exchange'] does not apply to cases transferred from State courts under the act of March 2, 1867 (for wbich the provision of Sub. 3 of $ 639, of the Revised Statutes, is substituted, and is substantially the same], giving to either party, in certain cases, a right to remove the suit from the State to the circuit courts of the United States, when he files an affidavit, etc., " that he has reason to believe, and does believe, that from local prejudice or local influence he will not be able to obtain justice in said court. Nor has such restriction any application to negotiable paper, in which is included the bonds and coupons of a municipal corporation, or bonds of any kind, when payable to order or indorsed in blank. City of Lexington v. Butler, 14 Wall., 282; White v. Railroad, 21 How., 576; Thompson v. See Co., 3 Wall., 331; Moran v. Miami Co., 2 Black., 722; Hercer Co. v. Hacket, 1 Wall., 83; Gilpke v. Dubuque, 1 Id., 203; Supervisors v. Schenck, 5 Id., 784; Bissell v. Jeffersonville, 24 How., 299.
The provision under consideration (being a substitute for act of 1867), overrides the provision in the eleventh section of the judiciary act, restricting the rights of assignees of notes or other choses in action. That provision, in the act of 1789, and the similar one in the act of 1875, has no application, in case of petition for removal, under Sub. 3, of $639, of the Revised Statutes. Barclay v. The Levee Coms., 1 Woods., 254.
Sec. 640. Removal of suits against corporations organized under a law of United States.- Any suit commenced in any court other than a circuit or district court of the United States against any corporation other than a banking corporation, crganized under a law of the United States, or against any member thereof as such inember for any alleged liability of such corporation, or of such member as a member thereof, may be removed, for trial, in the circuit court for the district where such suit is pending, upon the petition of such defendant, verified by oath, stating that such defendant has a defense arising under or by virtue of the Constitution or of any treaty or law of the United States. Such removal, in all other respects, shall be governed by the provisions of the preceding section.
27 July, 1868, c. 255, s. 2, v. 15, p. 227; 27 July, 1866, c. 288, c. 1, v. 14, p. 306. . Under this section it has been held:
1. That the parties entitled to a removal need not join at one time in presenting a petition for a removal.
2. That an allegation in the petition that the suit has been brought against the petitioners for the cause of action specified in the act of July 27, 1868 (corresponding to section 640 of the Revised Statutes), cannot be tried on affidavit on motion to remand the cause to the State court, but that ques. tion must be settled on the trial.
3. That the suit cannot be withdrawn from the jurisdiction of the circuit court by joining defendants who are not within the limitation prescribed by the statute with those who are within such limitation. Fisk v. The Union Pacific R. Co., 8 Blatch., 243 (1871).
So, under the same provision, it was held that a suit commenced in a State court against a corporation created under the laws of Great Britain cannot be removed by said corporation into the circuit court. Jones v. The Oceanic Steam Navigation Co., 11 Blatch., 406.
In the case just cited it was also further held that where it is averred in
the petition that the defendant has a defense under an act of congress, giving the title of the act, it is sufficient, although it does not state what the defense is, or the facts constituting it. See, also, Dennistown v. Draper, 5 Blatch., 336; The Mayor v. Cooper, 6 Wall., 247.
So, where a corporation was sued in a State court to recover damages sustained by its negligence, and afterward filed a petition for its removal to the circuit, averring that it was a corporation created under and by virtue of a law of the United States, and not a banking corporation, and that it had a defense to said action arising under a law of the United States, to-wit, under the law aforesaid, it was held that the corporation was entitled to a removal, and the plea to the jurisdiction was overruled. Turton v. Union Pacific R. Co., 3 Dill., 366. See, also, Farmers' Loan & Trust Co. v. Maquillan, Id., 379. But if it appears from the answer of the corporation that it has no defense arising under a law of the United States it will be remanded. Mageer. The Union Pacific R. Co., 2 Sawyer, 447.
And a party cannot remove a suit into the circuit court on the ground of prejudice or local influence unless the adverse party is a citizen of the State where the suit is brought, and this fact should be made to appear of record. And the petition should be filed as required by section 3 of the act of March 3, 1875; that is, “before or at the term at which said cause could be first tried and before the trial thereof." (See act of 1875, section 3, post, p. 167.) Bible Society v. Grove, 101 U. S., 610.
SEC. 641. Removal of causes against persons denied any civil right, etc.—When any civil suit or criminal prosecution is commenced in any State court, for any cause whatsoever, against any person who is denied or cannot enforce in the judicial tribunals of the State, or in the part of the State where such suit or prosecution is pending, any right secured to him by any law providing for the equal civil rights of citizens of the United States, or of all persons within the jurisdiction of the United States, or against any officer, civil or military, or other person, for any arrest or imprisonment or other trespasses or wrongs, made or committed by virtue of or under color of authority derived from any law providing for equal rights as aforesaid, or for refusing to do any act on the ground that it would be inconsistent with such law, 'such suit or prosecution may, upon the petition of such defendant, filed in said State court at any time before the trial or final hearing of the cause, stating the facts and verified by oath, be removed, for trial, into the next circuit court to be held in the district where it is pending. Upon the filing of such petition all further proceedings in the State courts shall cease, and shall not be resumed except as hereinafter provided. But all bail and other security given in such, suit or prosecution shall continue in like force and effect as if the same had proceeded to final judgment and execution in the State court. It shall be the duty of the clerk of the State court to furnish such defendant, petitioning for a removal, copies of said process against him, and of all pleading, depositions, testimony, and other proceedings in the case. If such copies are filed by said petitioner in the circuit court on the first day of its session, the cause shall proceed therein in the same manner as if it had been brought there by original process; and if the said clerk refuses or neglects to furnish such copies, the petitioner may therenpon docket the case in the circuit court, and the said court shall then have jurisdiction therein, and inay, upon proof of such refusal or neglect of said clerk, and upon reasonable notice to the plaintiff, require the plaintiff to file a declaration, petition, or complaint in the cause; and, in case of his default, may order a nonsuit and dismiss the case at the costs of the plaintiff, and such dismissal shall be a bar to any further suit touching the matter in controversy. But if, without such refusal or neglect of said clerk to furnish such copies and proof thereof, the petitioner for removal fails to file copies in the circuit court as herein provided, a certificate, under the seal of the circuit court, stating such failure, shall be given, and upon the production thereof in said State court, the cause shall proceed therein as if no petition for a removal had been filed. [See $ 1977.]
31 May, 1870, c. 114, ss. 16, 18, v. 16, p. 144; 9 April, 1866, c. 31, s. 3, v. 14, p. 27; 3 Mar., 1863, c. 81, s. 5, v. 12, p. 756; 11 May, 1866, c. 80, ss. 3, 5, v. 14, p. 46.
This section has no applicability to judicial infractions of the constitutional amendment after the trial has commenced; the statute has reference to a legislative denial or an inability resulting from it. The party seeking a removal under this section must set forth, under oath, the facts upon which he bases his claim to have the case removed, not merely his belief that he can. not enforce his rights at a subsequent stage of the proceedings; and where there is a failure to do this the circuit court has no jurisdiction to try the cause on removal. Virginia v. Rivers, 100 U. S., 313.
This provision held, not to be in conflict with the Constitution of the United States. Strander v. West Virginia, 100 U. S., 303.
See, also, as to jurisdiction, Lamar v. Dana, 10 Blatch., 34; as to limitations, Britton v. Butler, 11 Blatch., 350; assault and battery, and false imprisonment by a provost marshal, Walker v. Crane, 13 Blatch., 1. But a criminal prosecution cannot be removed until after indictment found. Commonwealth v. Artman, 3 Grant, 436.
If the case depends wholly upon the construction of the Constitution and acts of congress, the courts of the United States have jurisdiction of the subject-matter without regard to citizenship of the parties; and an officer acting in good faith under what purports to be a warrant from his superior, is acting under color of authority, and this gives the circuit courts jurisdiction. MR. JUSTICE GRIER, C. C., eastern district of Pennsylvania; Hodgson v. Millward, 3 Grant, 418.
Sec. 642. When petitioner is in actual custody of State court.-When all the acts necessary for the removal of any suit or prosecution, as provided in the preceding section, have been performed, and the defendant petitioning for such removal is in actual custody on process issued by said State court, it shall be the duty of the clerk of said circuit court to issue a writ of habeas corpus cum causa, and of the marshal, by virtue of said writ, to take the body of the defendant into his custody, to be dealt with in said circuit court according to law and the orders of said court, or, in vacation, of any judge thereof; and the marshal shall file with or deliver to the clerk of said State court a duplicate copy of said writ.
5 Feb., 1867, c. 27, v. 14, p. 385; 3 Mar., 1863, c. 81, s. 5, v. 12, p. 756; 11 May, 1866, c. 80, ss. 3, 5, v. 14, p. 46; 9 April, 1866, c. 31, s. 3, v. 14, p. 27.
Sec. 643. Removal of suits and prosecutions against revenue officers and officers acting under registration laws.—When any civil suit or criminal prosecution is commenced in any court of a State against any officer appointed únder or acting by authority of any revenue law of the United States now or hereafter enacted, or against any person acting under or by authority of any such officer, on account of any act done under color of his office, or of any such law, or on account of any right, title, or authority claimed by such officer, or other person under any such law; or is commenced against