« AnteriorContinuar »
had more or less litigation in their corporate capacity, which had excited a prejudice against non-resident corporations, which was controverted by one signed by numerous citizens of the vicinity, the petition would be denied. 12 Under the Act of 1887, defendant's affidavit showing that he might remove the case to any one of several counties adjoining that in which the suit was brought, although containing an averment in general terms that on account of local prejudice he will be unable to obtain justice in said courts, is insufficient. 13
1 Cooper v. Condon, 15 Kan. 572; Tunstall v. Mulison Parish, 30 La. An. 471; Baltimore P. & C. R. Co. v. New Aloany & S. R. Co., 53 lnd. 597.
2 Hakes v. Burns, 49 Fed. Rep. 33.
3 Sands v. Smith, 1 Dill. 233, note; Goodrich v. Hunton 23 Lan An. 372.
4 Baltimore, P. & O. R. Co. v. New Albany & S. R. Co., 53 Ind. 597.
5 Stoker v. Leavenworth, 7 La. 33); De Camp v. N. J. Mut. L. Ins. Co., 2 Sweeney, 481.
6 Rike v. Floyd, 42 Fed. Rep. 247; Fisk v. Henarie, 32 Fed. Rep. 417. 7 Goldworthy v. Chicago, M. & St. P. R. Co., 38 Fed. Rep. 769.
Amy v. Manning, 33 Fed. Rep. 868. 9 Robison v. Hardy, 38 Fed. Rep. 49. 10 Minnick v. Union Ins. Co., 40 Fed. Rep. 369; Hakes v. Burns, 40 Fed. Rep. 33. But see Fisk v. Henarie, 35 Fed. Rep. 230.
11 Dennison v. Brown, 38 Fed. Rep. 535.
§ 98 k. Affidavit must accompany application. -If an affidavit is necessary on an application for the removal of a cause, the affidavit of the attorney for a foreign corporation is sufficient. The affidavit may be filed in the State court, and a certified copy thereof sent up to the circuit court.? Where it sufficiently indentified the suit, although made eleven days before the suit was brought, it is as effective for the purposes of the statute as if made after the suit was brought. The reason why the party applying does not make the affidavit, should be given.*
1 Guinauit v. Louisville & N. R. Co., 42 La. An. 52.
2 Short v. Chicago, M. & St. P. R. Co. 33 Fed. Rep. 114; 34 Fed Rep. 225.
3 Canal & C. Sts. R. Co. v. Hart, 114 U. S. 654. 4 Cooper v. Condon, 15 Kan. 572.
$ 98 l. Affidavit for removal, by whom to be made.- The affidavit as to prejudice and local influence to a petition for removal by a natural person must be made by the party in person.
A removal cannot be had upon an affidavit made by his attorney, agent or any other person on his behalf.1
Contrary views.—The petition and affidavit may be signed by an attorney in fact for the petitioner, or by an attorney of record. It may be made by a corporation of another State, through its authorized agent or attorney. *
1 Duff v. Duff, 31 Fed. Rep. 772. See also Mahone v. Manchester & L. R. Corp. 114 Mass. 72; Anonymous, 1 Dill. 203, note; Dillon, Rem. Causes, 138.
2 Dennis v. Alachua Co., 3 Woods, 683; Kan. v. Texas Pac. R. Co. 22 Int. Rev. Rec. 46; 3 Cent. L. J. 12.
3 Hart v. New Orleans, 14 Fed. Rep. 180.
4 Mix v. Andes Ins. Co. 74 N. Y. 53; Shaft v. Phoenix Ins. Co. 67 N. Y. 514; Speer, Rem. Causes, 25.
$ 98 m. Affidavit, how taken and certified.The affidavit must be verified in accordance with the laws of the State in which the circuit court is held. It must be in substantial accordance with the words of the stat. ute.2 If taken out of the State by a commissioner, it must be certified to by the secretary of the State. The affida. vit must show a compliance with all the statutory prerequisites. * It must be so attested as to make it admissible under the laws of the State where the suit is pending.:
1 Sutherland v. Jersey City etc. R. Co., 22 Fed. Rep. 356: Bowen v. Chase, 7 Blatchf. 255; Florence v. Butler, 9 Abb. Pr. (N. S.) 63.
2 Baltimore, P. & C. R. Co. v. New Albany & S. R. Co., 53 Ind. 597. See Bowen v. Chase, 7 Blatchf. 255.
3 Florence v. Butler, 9 Abb. Pr. (N. S.) 63.
Ø 98 n. Sufficiency of affidavit. - That he had reason to believe, and did believe, that by reason of preju. dice and local influence, he would not be able to obtain justice in that forum, is sufficient. 1 It is not generally necessary to state the reasons or facts showing the local prejudice or influence. The facts or circumstances on which such belief is founded need not be set forth. 3 An affidavit by a person authorized to make it, stating of his own knowledge the existence of prejudice and local influ.
ence, is sufficient to justify an order of removal; and the adverse party will not be allowed to traverse, nor will the court hear evidence as to the truth of the affidavit. 4 An affidavit made in accordance with the Act of 1867 is sufficient to justify a removal."
1 Short v. Chicago, M. & St. P. R. Co., 33 Fed. Rep. 114; 34 Fed. Rep. 225.
2 Sands v. Smith, 1 Dill. 293, note; Meadow Valley Min. Co.v. Dodds, 7 Nev. 143; Quigley v. Cent. Pac. R. Co., 11 Nev. 350; Huskins v. Cincinnati etc. R. Co. (Tenn.), 37 Fed. Rep. 504.
3 Meadow Valley Min. Co. v. Dodds, 7 Nev. 143. See also Bowen v. Chase, 7 Blatchf. 253; Fisk v. Henarie, 32 Fed. Rep. 421.
4 Brodhead v. Shoemaker, 41 Fed. Rep. 518; Cooper v. Richmond etc. R. Co. (Ga.), 8 L. R. A. 366; Whelan v. New York etc. R. Co. (Ohio), 35 Fed. Rep. 849.
5 Hills v. Richmond etc. R. Co., 33 Fed. Rep. 81; Fisk v. Henarie, 32 Fed. Rep. 417.
$ 98 0. Affidavit under Actof 1887.-Under section 2, Act of 1887, a inere formal affidavit by the defendant that he believes that he cannot obtain justice because of prejudice or local influence is not sufficient; but the fact that such prejudice or local influence exists must be shown to the court by oral testimony or by affidavit.? An affidavit filed in the Federal circuit court, stating that affiant “has reason to believe, and does believe,” that defendant will not be able to obtain justice in the State court, is not sufficient evidence of the fact to warrant a removal.2 A mere formal affidavit by the defendant that he believes that he cannot obtain justice because of prejudice or local influence is not sufficient; but the fact that such prejudice or local influence exists must be shown to the court by oral testimony or by affidavit.3 The sim. le affidavit by the defendant, stating in general terms the existence of such prejudice, and its effect in the language of the statute, no opportunity having been given the plaintiff, by notice, to controvert such statement, ought not to be accepted as sufficient evidence of the fact.4
1 Short v. Chicago, M. & St. P. R. Co., 33 Fed. Rep. 114.
§ 98 p. Discretion of court in such cases.—The court is not bound to take for granted the unsupported statement of the defendant and assign to it conclusive effect; a reasonable discretion is to be given to the court on this subject. If it be shown to the reasonable satisfaction of the court that an impartial trial and an unbiased verdict cannot be reasonably expected, the venue ought to be changed.?
1 People v. Mahoney, 18 Cal. 181.
2 Table Mountain G. & S. Min. Co. v. Waller's Defeat Min. Co., 4 Nev, 218; Gordon v. State, 3 Iowa, 410; State v. Barrett, 8 Iowa, 539: Posey v. State, 73 Ala. 491; Findley v. State, 5 Blackf. 576; Spencer v. State, 8 Blackf. 281; Millison v. Holmes, 1 Ind. 55; Boswell v. Flockhart, 8 Leigh, 364; Poe v. State, 10 Lea, 674,
§ 98 q. Remand as to party where action severable. - Clauses 3 and 4 of sec. 2 of the Act of 1887, providing for a remand as to resident defendants where parties can be separated, refer to remand only after the entire suit has been removed.1
1 Whelan v. New York etc. R. Co. (Ohio), 38 Fed. Rep. 15.
$ 98 r. Order remanding cause.-An order remanding cause after an inquiry as to the existence of local prejudice does not deprive the removing party of his property without due process of law, because after the order retaining the cause he had spent money in preparing for trial. An order setting aside another order remanding a cause to the State court, from which it had been removed on the ground of local prejudice, is not a final order, and the cause remains pending. Hence the provision of the Act of March 3, 1887, for an inquiry into the question of local prejudice applies to a cause at such a stage when the act is passed.2 An order of the circuit court remanding a cause to the State court is not appealable.3
1 Birdseye v. Shaeffer, 37 Fed. Rep. 821. 2 Birdseye v. Shaeffer, 37 Fed. Rep. 861.
3 Richmond & D. R. Co. v. Thouron, 134 U. S. 45; followed Texas Land & C. Co. v. Scott, 137 U. S. 436.
REMOVAL IN SPECIAL CASES.
Removal in actions on land titles, under State grants. 8 99 a. Conflicting land grants. $ 100. Removal of suits against corporations organized under a law of
United States. § 100 a. Corporations created by congressional legislation. § 101. Removal of causes against persons denied any civil rights, etc. § 101 a. Denial of civil rights $ 101 b. In criminal cases. § 101 c. In general proceedings. § 102. When petitioner is in actual custody of State court. § 102 a. Habeas corpus. $ 103 Removal of suits and prosecutions against revenue officers and
officers acting under registration laws. § 103 a. In general. § 103 b. Suits removable. § 103 c. Criminal cases. § 103 d. Practice and procedure, $ 103 e. Enforcing removal. $ 104.
Removal of suits by aliens in a particular case. $ 99. Removal in actions on land titles, under State grants.-And if in any aotion commenced in a State court the title of land be concerned, and the parties are citizens of the same State, and the matter in dispute exceed the sum or value of two thousand dollars, exclusive of interest and costs, the sum or value being made to appear, one or more of the plaintiffs or defendants, before the trial, may state to the court, and make affidavit if the court require it, that he or they claim and shall rely upon a right or title to the land under a grant from a State, and produce the original grant or an exemplification of it, except