Case of the Sewing Machine Companies
85 U.S. 553 (1873)

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U.S. Supreme Court

Case of the Sewing Machine Companies, 85 U.S. 18 Wall. 553 553 (1873)

Case of the Sewing Machine Companies

85 U.S. (18 Wall.) 553

Syllabus

A case in which 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, is not removable to the circuit court of the United States under the Act of March 2, 1867, upon the petition of the two foreign defendants.

The Florence Sewing Machine Company, a Massachusetts corporation, sued in assumpsit in the court just named three other sewing machine companies, one of them like itself, a Massachusetts corporation, another a Connecticut corporation, and the third a New York corporation. The writ was returnable to April Term, 1871.

The purpose of the suit was to recover of the three defendant corporations an alleged overpayment which the plaintiff company alleged that it had made to them under a license agreement which they had granted to it. Service of the writ was made upon all the defendants, according to the laws of Massachusetts; upon the two foreign corporations by attachment of the property of each within the state &c. The Massachusetts corporation which was thus sued appeared at the April Term, 1871, by counsel and filed its answer, and at the April Term, 1872, the Connecticut and New York corporations did the same.

At the said April Term, 1872, and before the trial of the case, the Connecticut corporation filed a petition under the Act of March 2, 1867, hereinafter particularly set forth, [Footnote 1] for the removal of the cause to the Circuit Court of the United

Page 85 U. S. 554

States for the District of Massachusetts, assigning as a reason that the plaintiff corporation was a citizen of the State of Massachusetts and that it, the defendant corporation, was a citizen of the State of Connecticut, that a controversy existed between them in the said suit, and that the petitioner had reason to believe and did believe that from prejudice and local influence it would not be able to obtain, justice in the state court. An affidavit to this effect was also made in its behalf by its president and filed, and also a bond with sufficient sureties as required by law.

On the same day, a similar petition, affidavit, and bond were made and filed by and in behalf of the New York corporation.

Subsequently, at the same term and before the trial of the cause, these petitions were heard before the presiding judge. The judge (Ames, J.) refused to grant the petitions and ordered the case to proceed to trial, reserving the question whether his refusal was right for the consideration of the whole bench. The defendants excepted. A verdict was given for the plaintiff.

The exception was afterwards heard before the whole bench of the court below, which held that the petition to remove the case was rightly refused. Final judgment having been entered accordingly, the case was now brought here by the three defendant corporations.

The question thus presented was whether a case in which 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, is removable to the United States circuit court upon the petition of the two foreign defendants under the statute of March 2, 1867, upon their complying with the several requirements of that statute.

To understand the arguments of counsel and the opinion of the Court, it is necessary to refer to certain clauses of the Constitution and of two acts of Congress preceding that of 1867 -- one, the Judiciary Act of 1789; the other, an act of 1866.

Page 85 U. S. 555

The following clauses of the Constitution are referred to:

"ARTICLE III -- SECTION 2. The judicial power shall extend:"

"To all cases in law and equity arising under this Constitution, the laws of the United States, and treaties made or which shall be made under their authority."

"To all cases affecting ambassadors, other public ministers, and consuls."

"To all cases of admiralty and maritime jurisdiction."

"To controversies to which the United States shall be a party."

"To controversies between two or more states; between a state and citizens of another state; between citizens of different states; . . . between citizens of the same state claiming lands under grants of different states, and between a state or the citizens thereof and foreign states, citizens, or subjects."

"In all cases affecting ambassadors, other public ministers, and consuls, and those in which a state shall be party, the Supreme Court shall have original jurisdiction. In all the other cases beforementioned, the Supreme Court shall have appellate jurisdiction,"

&c.

The following are the acts of Congress which bear on the case:

First. The Judiciary Act of 1789, which thus enacts:

"SECTION 11. The circuit courts 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 suit is between a citizen of the state where the suit is brought, and a citizen of another state."

"SECTION 12. If a suit be commenced in any state court against an alien, or by a citizen of the state in which the suit is brought against a citizen of another state, and the matter in dispute exceeds the aforesaid sum of $500, . . . and the defendant shall at the time of entering his appearance in such state court file a petition for the removal of the cause for trial into the next circuit court, to be held in the district where the suit is pending, . . . and offer good and sufficient surety for his entering in such court, on the first day of its session, copies of said process against him, and also for his there appearing, . . . it shall then be the duty of the state court . . . to proceed no further in the cause, . . . and the said copies being entered as aforesaid in

Page 85 U. S. 556

such court of the United States, the cause shall there proceed in the same manner as if it had been brought there by original process,"

&c.

"[These sections, as interpreted by this Court, [Footnote 2] have been always understood to apply only to those cases in which all the individuals making up the plaintiffs are citizens of the state where the suit is brought and all the individuals making up the defendants are citizens of another state or states.]"

Next came an Act of July 27, 1866, entitled "An act for the removal of causes in certain cases from state courts." [Footnote 3] It was thus:

"If in any suit . . . in any state court against an alien, or by a citizen of the state in which the suit is brought against a citizen of another state, and the matter in dispute exceeds the sum of $500, . . . a citizen of the state in which the suit is brought is or shall be a defendant, and if the suit, so far as relates to the alien defendant or to the defendant who is the citizen of a state other than that in which the suit is brought is or has been instituted or prosecuted for the purpose of restraining or enjoining him, or if the suit is one in which there can be a final determination of the controversy, so far as it concern him, without the presence of the other defendants as parties in the cause, then and in every such case the alien defendant or the defendant who is a citizen of a state other than that in which the suit is brought may, at any time before the trial or final hearing of the cause, file a petition for the removal of the cause as against him into the next circuit court of the United States to be held in the district where the suit as pending and offer good and sufficient surety for his entering in such court . . . copies of said process against him, and of all pleadings, depositions, testimony, and other proceedings in said cause affecting or concerning him, and also for his there appearing, . . . and it shall be thereupon the duty of the state court to accept the surety and proceed no further in the cause as against the defendant so applying for its removal, . . . and the said copies being entered

Page 85 U. S. 557

as aforesaid in such court of the United States, the cause shall there proceed in the same manner as if it had been brought there by original process against the defendant who shall have so filed a petition for its removal as above provided. . . ."

"And such removal of the cause, as against the defendant petitioning therefor, into the United States court, shall not be deemed to prejudice or take away the right of the plaintiff to proceed at the same time with the suit in the state court as against the other defendants, if he shall desire to do so."

Finally came the Act of March 2, 1867, [Footnote 4] upon which the application for removal in the case was made. Its title is,

"An act to amend an act entitled 'An Act for the removal of causes in certain cases from state courts,' approved July 27, 1866."

It runs thus:

"Be it enacted that the act entitled 'An act for the removal of causes in certain cases from state courts,' approved July 27, 1866, be and the same is hereby amended as follows: that where a suit is now pending, or may hereafter be brought in any state court in which there is controversy between a citizen of the state in which the suit is brought and a citizen of another state, and the matter in dispute exceeds the sum of $500, . . . such citizen of another state, whether he be plaintiff or defendant, if he will make and file in such state court an affidavit, stating that he has reason to and does believe that from prejudice or local influence he will not be able to obtain justice in such state court, may, at any time before the final hearing or trial of the suit, file a petition in such state court for the removal of the suit into the next circuit court of the United States to be held in the district where the suit is pending and offer good and sufficient surety for his entering in such court, on the first day of its session, copies of all process, pleadings, depositions, testimony, and other proceedings in said suit, and doing such other appropriate acts as, by the act to which this act is amendatory, are required to be done upon the removal of a suit into the United States court, and it shall be thereupon the duty of the state court to accept the surety and proceed no further in the suit,

Page 85 U. S. 558

and the said copies being entered as aforesaid in such court of the United States, the suit shall there proceed in the same manner as if it had been brought there by original process,"

&c. [Footnote 5]

The plaintiff in error asserted that under the last-named act the case was removable upon the petition of the two foreign defendants, and that it was error in the state court to retain and try it.

The defendants in error, on the other hand, asserted that under this act as under the eleventh and twelfth sections of the Judiciary Act of 1789, the right of removal was confined to cases where the parties on one side were all citizens of one state and the parties on the other were all citizens of another state.

Page 85 U. S. 573

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