Cochran v. Montgomery County
199 U.S. 260 (1905)

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U.S. Supreme Court

Cochran v. Montgomery County, 199 U.S. 260 (1905)

Cochran v. Montgomery County

Nos. 37, 112

Argued November 2, 1905

Decided November 27, 1905

199 U.S. 260

Syllabus

1. A citizen of Alabama brought suit in an Alabama state court against a citizen of Maryland and a citizen of Alabama, whereupon the Circuit Court for the Northern District of Alabama ordered the removal of the case on the petition of the citizen of Maryland alleging prejudice or local influence. A motion to remand was denied, and the case went to trial and judgment. That judgment was affirmed by the circuit court of appeals, and a writ of error from this Court was thereupon prosecuted. Held: that as the jurisdiction of the circuit court as exercised was dependent entirely on diversity of citizenship, the judgment of the circuit court of appeals was final, and the writ of error could not be maintained.

2. But, this Court having granted the writ of certiorari in order to pass upon the question of the jurisdiction of the circuit court, held:

(a) That the clause of the applicable statute treating of removal because of prejudice or local influence does not furnish a separate and independent ground of federal jurisdiction, and describes only a special case comprised in the preceding clauses.

(b) That those suits only can be removed of which the circuit courts are given original jurisdiction, and that the right of removal because of diversity of citizenship can only to exercised by a defendant who is a citizen, or by defendants who are citizens, of a state other than that in which the suit is pending.

(c) That as, in the present case, suit was brought in plaintiff's state against a citizen of the same state and a citizen of another state, it could not have been originally brought in the circuit court, and the removal was improvidently granted.

(d) As the removal was had on the application of the nonresident defendant, the costs of this Court and of the circuit court must be paid by that party.

This action was brought January 21, 1902, in the City Court of Montgomery, Alabama, by the County of Montgomery, one of the counties of the State of Alabama, against John J. Cochran, a citizen of that county and state, and Fidelity & Deposit Company of Maryland, a corporation

Page 199 U. S. 261

of the State of Maryland, Cochran being the treasurer of the plaintiff county, and the Fidelity & Trust Company of Maryland being the sole surety on the official bond of said Cochran as such county treasurer, to recover damages for certain alleged breaches of said official bond. Cochran was charged with the conversion of amounts belonging to the general fund of the county, and of amounts belonging to the road and bridge fund. Demurrers to the complaint were severally filed by defendants in the state court.

February 15, 1902, the Fidelity & Deposit Company presented to the District Judge of the United States for the Middle District of Alabama, holding the circuit court, its petition for the removal of the cause into the circuit court of the United States for that district, alleging, among other things, that the matter in dispute exceeded the sum of $2,000 exclusive of interest and costs, and that the said controversy is between citizens of different states, in that the plaintiff was at the time of the commencement of said suit, and still is, a citizen of the State of Alabama, and your petitioner, The Fidelity & Deposit Company of Maryland, was at the time of the commencement of said suit, and still is, a citizen of the State of Maryland, and of no other state, having its principal office in the City of Baltimore, in the State of Maryland, and that your petitioner desires to remove this suit, which is now pending and undetermined in said state court, before the trial thereof, into the Circuit Court of the United States to be held in the Middle District of Alabama.

The petition then averred that, from prejudice or local influence in favor of the plaintiff and adverse to this defendant, it will not be able to obtain justice in said court or in any other state court to which the defendant may, under the laws of this state, have the right to remove said cause, on account of said prejudice or local influence; that the suit was against John J. Cochran, the treasurer of said county, and petitioner, a surety company and a surety on the official bond of said Cochran as such treasurer, to recover the sum of $120,000,

Page 199 U. S. 262

the full penalty of the bond, and that, by reason of the nature of said suit, all the residents and citizens of said Montgomery County have a direct interest in the recovery by the said plaintiff of the amount claimed.

It was further alleged that Cochran was "practically financially irresponsible," and therefore "practically only a nominal party to the suit," because the surety company "would be obliged to meet practically the whole claim should judgment be rendered against defendants," and then set forth certain circumstances tending to show that there was local prejudice against the surety company "in any county in the State of Alabama in which said case should be tried." On the filing of the petition, the judge entered an order finding that it appeared to the court "that, from local prejudice or local influence," the surety company would not be able to obtain justice in the City Court of Montgomery, or in any other state court to which the company might have the right to remove the cause, and that the court was of opinion that it should be removed to the circuit court on the giving of bond in the penalty of $1,000, and ordered the removal of the cause accordingly. The case came on to be heard in the circuit court at the May term, 1902, when the plaintiff moved to remand upon the ground that the federal court was without jurisdiction, one of the defendants being a citizen of the same state as the plaintiff. This motion was overruled. 116 F. 985. On the trial, the plaintiff amended the complaint by adding four additional counts, to which demurrers were sustained, and the case was tried on the original complaint and the general issue and certain special pleas interposed by defendants. The result was a judgment in favor of plaintiff for the amount of the general fund converted, but, under the rulings of the court, there was no recovery on account of the road and bridge fund. On writ of error sued out by plaintiff, this judgment was reversed and a new trial ordered by the court of appeals. 121 F. 17. On a second trial, May 28, 1903, the complaint was amended in certain particulars,

Page 199 U. S. 263

and three new counts added. The second trial resulted in a judgment in favor of plaintiff for an amount less than the amount claimed. On this judgment, cross-writs of error were sued out from the circuit court of appeals, and the judgment reversed on the writ brought by plaintiff, and a new trial ordered. 126 F. 456. The third trial, February 3, 1904, resulted in a judgment in favor of plaintiff for the full amount of the road and bridge fund converted by Cochran, with interest, less certain admitted payments made by him, and not including the amount of the general fund, which had been, in the meantime, voluntarily paid by the company. On this last judgment, defendants sued out a writ of error to the court of appeals, and the judgment was affirmed. 128 F. 1019. And thereupon the present writ of error was allowed. The case is numbered 37. Application for certiorari was made, and is numbered 112.

Page 199 U. S. 267

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