Page images
PDF
EPUB

5. Injunction against proceedings in State court.] — The fact that the action involves a demand for an injunction against proceedings in a State court,- a kind of relief which a United States court cannot grant, — is no obstacle to removal; but in such case the party seeking such relief pending the action must get his injunction in the State court. Such an injunction the United States court may refuse to dissolve. If it was granted before removal, it may be enforced in the United States court; if not, he can have no such injunction except as a part of final judgment.3

6. Amount in controversy.] — In those cases where the amount in controversy is material, a controversy not involving pecuniary value is not removable, no matter how great its importance. But a market value is not necessary under such a restriction. The amount claimed, and appearing to be recoverable by the plaintiff's process and pleading, exclusive of interest and costs, is that which determines the question. If the allegations of the pleading show a claim not exceeding the limit, a

original action as not to be removable. Bondurant r. Watson, 103 U. S. 281; Ward v. Congress Const. Co., 99 Fed. Rep. 603.

Replevin against a sheriff, for levy under a fieri facias issued upon a judg. ment, Held, removable, because not merely auxiliary. Kern v. Huidekoper, 103 U. S. 485.

Action against stockholder, after judgment against corporation and return of execution unsatisfied, held, removable in Lackawanna Coal, etc., Co. v. Bates, 56 Fed. Rep. 737.

As to creditor's suit based upon judgment of State court, see First Nat. Bank v. Steinway, 77 Fed. Rep. 66).

If the controversy is between persons whose citizenship entitles either to a removal, it is no objection that the controversy relates to a fund in the custody of the State court. Relfe v. Rundle, 103 U. S. 222; Eureka, etc., Ry. Co. v. Cal., etc., Ry. Co., 103 Fed. Rep. 898; Phelps v. Mut. Res. Life Assn., 112 id. 453, aff’d, 190 U. S. 147.

1U. S. R. S., & 720.
2 Perry 1. Sharpe, 8 Fed. Rep. 15.

3 Compare Bondurant v. Wilson, 103 U. S. 281, 289; French v. Hay, 22 Wall. 250; Riverdale, etc., Mills v. Ala., etc., Mfg. Co., 198 U. S. 188; Hunt 1. Fisher, 29 Fed. Rep. 801. See, also, paragraph 9, p. 766, and footnotes.

4 See 16 Abb. Pr. (N. S.) 97, note; DeKrafft v. Barney, 2 Black, 704, and cases cited at 707; Pratt v. Fitzhugh, 1 id. 271; Kurtz 1. Moffit, 115 U S. 487.

6 Sparrow 1. Strong, 3 Wall. 103. Compare 21 How. U. S. 290: Elgin r. Marshall, 106 U. S. 578. See, also, Durham v. Seymour, 161 U. S. 235; South Carolina v. Seymour, 153 U. S. 353. Although not apparent from the terms of the statute, the matter in dispute in a case removed from a State court on the ground of prejudice or local influence, must exceed $:,000. In re Penn. Co., 137 U. S. 451.

A demand in the petition for the recovery of specified land and $500. Ileld, to be a demand for more than $500. Ayers v. Watson, 113 U. S. 594.

demand for a judgment exceeding the limit does not suffice. But on the other hand, when either the process or the pleading fails to fix the sum, the other may be referred to to ascertain it; and if neither disclose it, as sometimes in case of an injunction suit, the court may receive other evidence.? If there are several plaintiffs, the amount due to each must exceed the limit,8 unless the plaintiffs have undivided interests, or claim under the same title, in which case jurisdiction will be entertained if the aggregate of their claims or interests reaches the jurisdictional amount

[blocks in formation]

[Jurisdiction of Circuit Court, 1875.) Be it enacted by the Senate and House of Representatives of the United States of America in Congress assembled, That the circuit courts of the United States shall have original cognizance, concurrent with the courts of the several States, of all suits of a civil nature at common law or in equity, where the matter in dispute exceeds, exclusive of costs, the sum or value of five hundred dollars, and arising under the constitution or laws of the United States, or treaties made, or which shall be made, under their

(Jurisdiction of Circuit Court, 1887.) Be it enacted by the Senate and House of Representatives of the United States of America in Congress assembled, That the first section of an act entitled An act to determine the jurisdiction of circuit courts of the United States, and to regulate the removal of causes from State courts, and for other purposes," approved March 3, 1875, be, and the same is hereby, amended so as to read as follous: “That the circuit courts of the United States shall have original cognizance, concurrent with the courts of the ser

[ocr errors]

authority, or in which the United States are plaintiffs or petitioners, or in which there shall be a controversy between citizens of different States or a controversy between citizens of the same State claiming lands under grants of different States, or a controversy between citizens of a State and foreign States, citizens, or subjects; and shall have exclusive cognizance of all crimes and offenses cognizable under the authority of the United States, except as otherwise provided by law, and concurrent juris diction with the district courts of the crimes and offenses cognizable therein. But no person shall be arrested in one district for trial in another in any civil action before a circuit or district court. *And no civil suit shall be brought before either of said courts against any person by any original process or proceeding in any other district than that whereof he is an inhabitant, or in which he shall be found at the time of serving such process or commencing such proceed ing, except as hereinafter provided; † nor shall any circuit or district court have cognizance of any suit founded on contract in favor of an assignee, unless a suit might have been prosecuted in such court to recover thereon if no assignment had been made, except in cases of promis. sory notes negotiable by the law mer chant and bills of exchange. And the circuit courts shall also have appel late jurisdiction from the district courts under the regulations and restrictions prescribed by law.

eral States, of all suits of a civil nature, at common law or in equity, where the matter in dispute exceeds, exclusive of interest and costs, the sum or value of two thousand dollars, and arising under the constitution or laws of the United States, or treaties made, or which shall be made, under their authority, or in which controtersy the United States are plaintiffs or petitioners, or in which there shall be a controversy between citizens of different States, in which the matter in dispute exceeds, exclusive of interest and costs, the sum or value aforesaid, or a controversy between citizens of the same State claiming lands under grants of different States, or a controversy between citizens of a Suate and foreign States, citizens, or subjects, in which the matter in dispute exceeds, exclusive of interest and costs, the sum or value aforesaid, and shall have exclusive cognizance of all crimes and offenses cognizable under the authority of the United States, except as otherwise provided by law, and concurreut jurisdiction with the district courts of the crimes and offenses cognizable by them. But no person shall be arrested in one district for trial in another in any civil action before a circuit or district court; * and no civil suit shall be brought before either of said courts against any person by any original process or proceeding in any other district than that whereof he is an inhabitant, but where the jurisdiction is founded only on the fact that the action is between citizens of different States, suit shall be brought only in the district of the residence of either the plaintiff or the defendant; † nor shall any circuit or district court have cognizance of any suit ercept upon foreign bills of exchange, to recover the contents of any promissory note or other chose in action in favor of any assignee, or of any subsequent holder if such instrument be payable to bearer, and be not made by any corporation, unless such suit might have been prosecuted in such court to recover the said contents if no assignment or transfer had been made.

[* The clauses opposite, between the * and the †, re-enact U. S. R. S., $ 739, omitting, however, the notable clause, “or in which he is found at the time of serving the writ,” and omitting the qualifications or exceptions as to absentees and suits in States containing several districts, which were made by 88 738 and 740-2. Compare, as to absentees, § 8 of the act of 1875.)

[Removable causes, 1875.) Sec. 2. That any suit of a civil nature, at law or in equity, now pending or here.

[Remorable causes, 1887.) “ Sec. 2. That any suit of a civil nature, at law or in equity, arising under the consti. after brought in any State court where the matter in dispute exceeds, exclusive of costs, the sum or value of five hundred dollars, and arising under the constitution or laws of the United States, or treaties made, or which shall be made, under their authority, or in which the United States shall be plaintiff or petitioner, or in which there shall be a controversy between citizens of different States, or a con troversy between citizens of the same State claiming lands under grants of different States, or a controversy be tween citizens of a State and foreign States, citizens, or subjects, either party may remove said suit into the circuit court of the United States for the proper district. And when in any suit mentioned in this section there shall be a controversy which is wholly between citizens of different States, and which can be fully determined as between them, then either one or more of the plaintiffs or defendants actually interested in such controversy may remove said suit into the circuit court of the United States for the proper district.

tution or laws of the United States, or treaties made, or which shall be made, under their authority, of which the circuit courts of the United States are given original jurisdiction by the preceding section, which may now be pending, or which may hereafter be brought, in any State court, may be removed by the defendant or defendants therein to the circuit court of the United States for the proper district. Any other suit of a civil nature, at law or in equity, of which the circuit courts of the L'nited States are given jurisdiction by the preceding section, and which are now pending, or which may hereafter be brought, in any State court, may be removed into the circuit court of the United States for the proper district by the defendant or defendants therein, being non-resi. dents of that State; and when in any suit mentioned in this section there shall be a controversy which is wholly between citizens of different States, and which can be fully determined as between them, then either one or more of the defendants actually interested in such controversy may remove said suit into the circuit court of the United States for the proper district. * And where a suit is now pending, or may be hereafter brought, in any State court, in which there is a controversy between a citizen of the State in which the suit is brought and a citizen of another State, any defendant, being such citizen of another State, may remove such suit into the circuit court of the United States for the proper district, at any time before the trial thereof, when it shall be made to appear to said circuit court that from prejudice or local influence he will not be able to obtain justice in such State court, or in any other State court to which the said defendant may, under the laws of the State, have the right, on account of such preju. dice or local influence, to remove said cause: Prorided, That if it further appear that said suit can be fully and justly determined as to the other de. fendants in the State court, without being affected by such prejudice or local influence, and that no .party to the suit will be prejudiced by a separation of the parties, said circuit court may direct the suit to be remanded,

[Prejudice or local influence cases.) P S. R. S., $ 639. When a suit is between a citizen of the State in which it is brought and a citizen of another State, it may be so removed on the petition of the latter, whether he be plaintiff or defendant, filed at any time before the trial or final hear. ing of the suit, if, before or at the time of filing said petition, he makes and files in said State court an affidavit stating that he has reason to believe, and does believe, that, from prejudice or local influence, he will not be able to obtain justice in such State court.

In order to such removal, the petitioner in the cases aforesaid must at the time of filing his peuntion therefor, offer in said State court good and sufficient surety for his entering in such circuit court, on the first day of its session, copies of said process against him, and of all pleadings, depositions, testimony, and other proceedings in the cause, or, in said cases where a citizen of the State in which the suit is brought is a defendant, copies of all process, pleadings, depositions,

testimony, and other proceedings in the cause concerning or affecting the petitioner, and also for his there ap pearing and entering special bail in the cause, if special bail was originally requisite therein. It shall thereupon be the duty of the State court to accept the surety and to proceed no further in the cause against the petitioner, and any bail that may have been originally taken shall be discharged.

When the said copies are entered as aforesaid in the circuit court, the cause shall there proceed in the same manner as if it had been brought there by original process, and the copies of pleadings shall have the same force and effect, in every respect and for every purpose, as the original pleadings would have had by the laws and practice of the courts of such State if the cause had remained in the State court.

so far as relates to such other defendants, to the State court, to be proceeded with therein. At any time before the trial of any suit which is now pending in any circuit court, or may hereafter be entered therein, and which has been removed to said court from a State court on the affidavit of any party plaintiff that he had reason to believe and did believe that, from prejudice or local influence, he was unable to obtain justice in said State court, the circuit court shall, on application of the other party, examine into the truth of said aftidavit and the grounds thereof, and, unless it shall appear to the satisfaction of said court that said party will not be able to obtain justice in such State court, it shall cause the same to be remanded thereto. Whenever any cause shall be removed from any State court into any circuit court of the United States, and the circuit court shall decide that the cause was improperly removed, and order the same to be remanded to the State court from whence it came, such remand shall be immediately carried into execution, and no appeal or writ of error from the decision of the circuit court so remaining such cause shall be allowed.''

[Remand] Act of 1875, sec. 5. That if, in any suit commenced in a circuit court or removed from a State court to a circuit court of the United States, it shall appear to the satisfaction of said circuit court, at any time after such suit has been brought or removed thereto, that such suit does not really and substantially involve a dispute or controversy properly within the juris. diction of said circuit court, or that the parties to said suit have been improperly or collusively made or joined, either as plaintiff's or defendants, for the purpose of creating a case cognizable or removable under this act, the said circuit court shall proceed no further therein, but shall dismiss the suit or remand it to the court from which it was removed as justice may require, and shall make such order as to costs as shall be just; but the order of said circuit court dismissing or remanding said cause to the State court shall be reviewable by the Supreme Court on writ of error or appeal, as the case may be.

* The clause between them and the † compare with the 3d subd. of U. S. R. S., 8 639.

The clause between the † and the f compare with the opposite § 5 of the Act of 1875.

(With the last clause of g 2, as to remand, compare the last clause of & 5 of the Act of 1875, which allowed the Supreme Court to review an order of remand.)

[Proceedings to remove, 1875.] Sec. 3. That whenever either party, or any one or more of the plaintiffs or defendants entitled to remove any

[merged small][ocr errors]
« PreviousContinue »