Imágenes de páginas

§ 95 d. Removal by and against the United States government.—Ã suit may be removed to a Federal court from a State court, which is a claim for and by one party under the authority of the United States government, and is contested by the other party on the ground of a want of such authority.1 A suit against a national bank, in which the subpoena runs to the bank and does not name the receiver, although it is served upon him, and the bank is altogether in his hands, and the decree would reach assets in his hands, if anything, is against the receiver as the real party, and is removable to a Federal court, as he is an agent of the United States. 2

1 Mitchell v. Smale, 140 U. S. 406.

2 Sowles v. First Nat. Bank of St. Albans, 46 Fed. Rep. 513.

§ 95 e. Conflicting land grants.-Controversies between citizens claiming lands under grants of different States are within the jurisdiction, notwithstanding one of the States at the time of the first grant was a part of the other. It is the first grant which passes legal title and authorizes jurisdiction. If a State issues a grant under the authority of a compact with another State, the case cannot be removed. The right under this section to remove depends on the value of the land, and not on the title; and witnesses may be produced to prove its value. The party applying on the ground of grants from different States must produce his grant in evidence;6 but a grant based on a warrant and location made before the separation of a part of a State is sufficient showing. A party who claims under a grant from the State in which suit is pending cannot remove the case.


1 Town of Pawlet v. Clark, 9 Cranch. 292.

2 Colson v. Lewis, 2 Wheat. 377.

3 Thompson v. Kendricks, 5 Hayw. 115.

4 Thompson v. Kendricks, 5 Hayw. 115. 5 Thompson v. Kendricks, 5 Hayw. 115.

6 Thompson v. Kendricks, 5 Hayw. 115.


7 Colson v. Lewis, 2 Wheat. 377; Town of Pawlet v. Clark, 9 Cranch, 292. 8 Shepherd v. Young, 1 T. B. Mon. 203.

§ 95 f. Where State is party to suit.-An action in which a State is a party is not removable.1 An action

for a statutory penalty brought by a State is not remov able. An action by a State essentially as criminal action is not subject to removal. A suit by a State in one of its own courts cannot be removed to a circuit court, under the Act of 1875, unless it is a suit arising under the Constitution or laws of the United States or treaties made under their authority. But if it presents a case arising under the laws of the United States, as, a suit to try the right of a corporation, amenable to State process, to exercise powers within State territorial limits, it is removable into the circuit court. In an action by a State to recover money claimed to be due as taxes, where the right to recover was made, by the pleadings, to depend (1) on the power of the State to tax the franchises of the corporation, derived from the acts of Congress, and (2) on the effect of art. 14 of the Amendments of the Constitution on the validity of the statutes under which the taxes sued for was levied, -the defendant has the right to remove." Though the State laws prescribe the same general rule regarding taxation of national banks as do the Federal statutes, the right of removal to a Federal court of a cause involving that question is not thereby impaired. It has been held in one circuit, that a State cannot be sued by one of its own citizens in a Federal court, although the plaintiff seeks to enforce a right dependent upon the construction of the Constitution of the United States.8 But in another circuit it has been held that this may be done.9 A suit against a State as well as a county is not within the category of removable cases. A State is not a citizen if a county is, 10 A circuit court will not take jurisdiction of an action which is in effect, although not in form, against a State by a citizen of another State.11 A suit between a State and citizens of another State cannot be removed to the circuit court on the ground of citizenship of the parties.12 The jurisdiction of the circuit court of the United States cannot be decreed or taken away on account of a State having an interest in a suit, unless the State is a party on the record. 13 A suit to restrain certain State and county officers from assessing property exempt by statute is not a suit against the State. It A State is not a party to a suit so as to deprive a Federal court of jurisdiction to grant an injunction against a prosecuting attorney to pre

vent him from proceeding to enforce a dormant injunction granted against a non-resident to prevent the sale of liquors in original 15 packages. An injunction will lie against officers of the State to prevent the execution of laws which violate rights under the Constitution of the United States.16

1 Stone v. North Carolina, 117 U. S. 430.

2 State of Iowa v. Chicago, B. & Q. R. Co., 37 Fed. Rep. 437.

3 State v. Day Land & C. Co., 41 Fed. Rep. 223.

4 Germania Ins. Co. v Wisconsin, 119 U. S. 473.

5 Ames v. Kansas, 111 U. S. 449.

6 Southern Pac. R. Co. v. California, 118 U. S. 109.

7 Richards v. Rock Rapids, 72 Iowa, 77.

8 Hans v. State, 24 Fed. Rep. 55.

9 Harvey v. Virginia, 20 Fed. Rep. 411; Foster, Fed. Jud. Acts, 9, 10 Upshur Co. v. Rich, 135 U. S. 467; Austin v. Gagan, 33 Fed, Rep. 626. 11 Richardson v. Capitol Commissioners, 2 Denver Leg. News, 51

12 Ferguson v. Ross (N. Y.), 38 Fed. Rep. 161; Stone v. South Carolina, 117 U. S. 430.

13 Louisville C. & C. R. Co. v. Letson, 2 How. 497.

14 Secor v. Singleton, 35 Fed. Rep. 376. 15 Tuchman v. Welch, 42 Fed. Rep. 543. 16 Osborn v. Bank of U. S. 22 U. S. 738; Litchfield v. Webster County, 101 U. S. 773; Co., 114 U. S. 311.

Davis v. Gray, 83 U. S. 203;
Allen v. Baltimore & O. R.

§ 95 g. Restriction of right of removal by assignees.-A suit may be removed, although it is brought by the assignee of a chose in action,1 in his own name and in pursuance of a State law;2 or by the assignee of a contract to recover damages for its breach; but a defendant cannot acquire the right to a removal by the purchase of the interests of his co-defendants; yet a defendant may remove a suit brought against him by an assignee, the assignee being the citizen of another State, though the assignor in whose favor the debt was contracted belongs to the same State as defendant. Where a citizen transfers mortgage notes to a foreigner, for the purpose of giving jurisdiction, not accompanied with an agreement for a retransfer, the circuit court will take jurisdiction of the cause when removed;6 and so as to the transfer of lands; and the fact that the motive was to bring the suit will not impair the right of action. A bona fide conveyance of property in controversy, for the ex


press purpose of conferring jurisdiction, is no ground for remanding a cause to the State court. So the right to sue is not invalidated by the fact that the note was transferred for the purpose of giving the court jurisdiction;10 but a transfer mala fide in one State to the citizen of another will not enable the grantee to maintain ejectment in the United States court.11 The circuit court has no jurisdiction where the nominal parties have been made parties collusively to bring the controversy within its jurisdiction. Where parties conveyed lands to a stranger, a citizen of another State, without his knowledge and without consideration, for the purpose of creating jurisdiction in the United States courts, the transaction was only colorable and collusive, and the suit must be dismissed. 13 A plaintiff brought into the controversy by assignment, merely that he may acquire a standing to enable him to prosecute in the interest of the original party, is improperly and collusively made a party to the suit. 14 The sections of the Act of March 3, 1875, should be construed together, and the remedy should not be allowed where the plaintiff is assignee, unless the assignee might have brought suit in the Federal court. 15 Citizenship of party to contract and not of his assignee determines the question of right to removal of the cause." Colorable assignment gives U. S. courts no power to take jurisdiction, but resort can only be had to State courts for protection against consequences of such encroachment on right of defendant. 17 A case is not removable because a colorable assignment has been made to give a State court exclusive jurisdiction. 18 Intervention of a new party, by purchase, after time for removal has expired, does not give


right of removal. 19 The assignee of a chose in action may

bring suit thereon in the State court and remove it to the Federal court, although he cannot sue originally in the latter unless his assignor could have done so. 20 Where a cause of action upon a contract not negotiable between citizens of the same State, is assigned to a citizen of another State, who brings suit thereon in the State court, such suit cannot be removed into the circuit court of the United States. 21 In a suit by an absolute assignee of a claim for negligent injury: Held, that the citizenship of the assignor was no ground for removal to a Federal

court.2 22 A Maryland citizen who, as assignee of a Virginia corporation, sues citizens of Virginia in a State court may remove the cause to the Federal court. 23 The fact that the plaintiff, as assignee of a judgment, could not have brought suit thereon in the United States circuit court in the first instance, because his assignors were citizens of the State where brought, does not prevent him from removing it from the State court. 24 Under the act

[ocr errors]

of 1875, where all the other conditions for removal exist, although the suit, because founded on a contract in favor of an assignee, could not have been brought in the circuit court, if no assignment had been made the suitis removable. A suit to compel the transfer of shares of stock on books of a corporation is not one "to recover the contents of any chose in action," within the meaning of the act.26 An assignee of a policy of life insurance cannot maintain a suit either alone or conjointly with the administratrix of the insured in a Federal court, unless his assignor could have done so. 27 Although a promissory note payable to the maker's order and indorsed in blank is in effect payable to bearer, if it is made by a corporation, a suit thereon may be brought by an assignee against a citizen of another State, although the assignor could not have brought the suit.28

1 Bushnell v. Kennedy, 9 Wall. 387; Lexington v. Butler, 14 Wall. 282; Barclay v Commissioners, 1 Woods, 254. But see Ayres v. Western R. Corp., 32 How. Pr. 351; New Orleans C. & B. Co. v. Recorder, 27 La. An. 291; Colcord v. Wall, 2 Miles, 459.

2 Thompson v. Railroad Cos., 6 Wall. 134.

Manuf. Bank, 14 Abb. Pr. 436.

3 Barney v. Globe Bank, 5 Blatchf. 107.

4 Temple v. Smith, 4 Fed Rep. 02.

But see Anderson v.

5 Waterbury v. City of Laredo, 3 Woods, 371; Leutz v. Butterfield, 7 Daly, 24.

6 Marion v. Ellis, 10 Fed. Rep. 410.

7 De Laveaga v. Williams, 6 Sawy. 573.

8 Foote v. Town of Hancock, 15 Blatchf. 343.

9 Hoyt v. Wright, 4 Fed. Rep. 168.

10 Lanning v. Lockett, 11 Fed. Rep. 814; S. C., 10 Fed. Rep. 451.

11 Greenwalt v. Tucker, 10 Fed. Rep. 884.

12 Marion v. Ellis, 9 Fed. Rep. 367. See Hawes v. Contra Costa W. Co., 11 Fed. Rep. 93, note.

13 Coffin v. Haggin, 11 Fed. Rep. 219.

14 Fountain v. Town of Angelica, 12 Fed. Rep. 8.

« AnteriorContinuar »