On the facts stated in the opinion it is
held that
there is no separable controversy in this case, but that if there
were, the provision as to the removal of such a controversy has no
application to a removal on the ground of local prejudice.
In order for the removal of a cause from a state court on the
ground of local prejudice under Rev.Stat. § 639, it is essential,
where there are several plaintiffs or several defendants, that all
the necessary parties on one side be citizens of the state where
the suit is brought, and all on the other side be citizens of
another state or other states, and the proper citizenship must
exist when the action is commenced as well as when the petition for
removal is filed.
The case is stated in the opinion.
MR. CHIEF JUSTICE FULLER delivered the opinion of the Court.
In December, 1865, Milton Parker filed his bill in the Circuit
Court of Kanawha County, West Virginia, against John N. Clarkson
and some seventy other defendants seeking the marshaling of assets
and the subjection of Clarkson's property
Page 132 U. S. 268
to the satisfaction of certain judgments held by the complainant
against him, which appears to have been treated, and may be
considered, as having been intended to bring all Clarkson's
creditors into concourse, and after the adjustment of the liens of
those having security, to devote any remaining property, or any
surplus arising upon the securities, to the discharge of his
liabilities. The cause was referred to a commissioner to take,
state, and report an account of the property owned by Clarkson, and
the liens thereon, and their priorities, and various reports were
made in the premises. On the 8th day of July, 1871, C. G. Hussey
& Co. and John Johns, assignee of John N. Clarkson in
bankruptcy, described in an order of the circuit court of that date
as defendants, filed their petition and affidavit, sworn to by "J.
N. Clarkson, a party to the above-mentioned suit," for the removal
of the cause into the United States Court for the District of West
Virginia, in these words:
"Your petitioners, John Johns, assignee of J. N. Clarkson in
bankruptcy, and a citizen and inhabitant of the State of Virginia,
and C. G. Hussey and Charles Avery, partners in business, using the
name of C. G. Hussey & Company, and citizens and inhabitants of
the State of Pennsylvania, respectfully represent unto your honor
that they are parties defendants, and also plaintiffs, on a bill of
review and petition in a suit pending in chancery in your honor's
court in Kanawha County in which Milton Parker is complainant and
John N. Clarkson and others are defendants."
"That among the defendants are E. Hemmings, S. Thornburg, A. H.
Beach, Henry Chappell, J. H. Brown, Ann Thomas, J. M. Laidley, and
J. D. Lewis, and J. C. Ruby, all of whom are citizens and
inhabitants of the State of West Virginia; that said suit is now
pending in said Circuit Court of Kanawha County, and in said suit
there is a controversy between your petitioners, in different
rights, and the aforesaid parties, citizens and inhabitants of the
State of West Virginia, in which said suit be pending; that the
matter in dispute exceeds the sum of $500, exclusive of costs. Your
petitioners have reason to and do believe that from prejudice or
local influence they
Page 132 U. S. 269
nor either of them, will not be able to obtain justice in such
state court. They file this petition for the removal of said cause
of Parker V. Clarkson and others, now pending in the Circuit Court
for Kanawha County, West Virginia, into the District Court of the
United States held at Charleston, West Virginia, the same being in
the district where this suit is pending,"
etc.
The cause was thereupon ordered to be removed as prayed.
On the 10th day of April, 1872, another order was entered in the
case by the state circuit court reciting that a mistake had been
made in respect to the filing of a bond upon removal, and, the bond
being now filed, the court directs such removal on the petition of
July 8, 1871, and "on the affidavit of the said C. G. Hussey, this
day filed, the sufficiency of which affidavit and bond is hereby
approved by this Court." The affidavit referred to is as
follows:
"Your petitioners, C. G. Hussey and Charles Avery, partners in
trade, using the name, firm, and style of C. G. Hussey & Co.,
and citizens and inhabitants of the State of Pennsylvania,
respectfully represent unto your honor that they are parties
defendants, and also parties plaintiffs, on petition and bill of
review in a cause pending on the chancery side of your honor's
court in Kanawha County, West Virginia, in which Milton Parker is
complainant, and John N. Clarkson
et als. are
defendants."
"That among the defendants are E. Hemmings, A. H. Beach, H.
Chappell, J. A. Brown, J. D. Lewis, J. M. Laidley, all of whom are
citizens and inhabitants of the State of West Virginia; that said
suit and bill of review therein are now pending in said court for
Kanawha County, West Virginia."
"That in said suit and bill of review there is a controversy
between your petitioners, in different rights, and the aforesaid
parties, citizens and inhabitants of the State of West Virginia, in
which state said suit is pending; that the matter so in controversy
and dispute exceeds the sum of $500, exclusive of costs."
"Your petitioners have reason to and to believe that from
prejudice or local influences they will not be able to obtain
justice in said state court. "
Page 132 U. S. 270
"They file this petition for the removal of said cause of
Parker v. Clarkson et als., now pending in the Circuit
Court for Kanawha County, West Virginia, unto the District Court of
the United States for the District of West Virginia (having circuit
court powers), held at Charleston, West Virginia, same being in the
district where this suit is now pending."
January 21, 1873, the record was filed and the cause docketed in
the United States court. Various proceedings were afterwards taken
therein, and a decree was rendered on the 12th day of December,
1885, determining the amounts due to, and priorities of, some of
the creditors and directing the sale of certain real estate. From
this decree the pending appeal was prosecuted. The record is in a
confused and imperfect condition, but it shows, among other things,
that C. G. Hussey & Co. were judgment creditors of Clarkson,
and Hussey and his partner are described in both petitions as
citizens and inhabitants of the State of Pennsylvania. In the first
petition, nine persons, and in the second, six, are designated from
among the defendants as citizens and inhabitants of the State of
West Virginia. It is stated in the first petition that Clarkson's
assignee in bankruptcy was at the time of filing it a citizen and
inhabitant of the State of Virginia. The assignee did not join in
the second, although his name is signed by attorney to the bond
given on removal.
There was no separable controversy here,
Fidelity Insurance
Company v. Huntington, 117 U. S. 280;
Ayers v. Chicago, 101 U. S. 184,
101 U. S. 187,
but if there were, the provision as to the removal of such a
controversy has no application to a removal on the ground of local
prejudice, under the Act of March 2, 1867, c, 196, 14 Stat. 558,
upon which these petitions were based.
Jefferson v.
Driver, 117 U. S. 272.
The provisions of that act are reproduced in the third
subdivision of section 639 of the Revised Statutes, and it was and
is essential, in order to such removal, where there are several
plaintiffs or several defendants, that all the necessary parties on
one side must be citizens of the state where the suit is brought
and all on the other side must be citizens of another
Page 132 U. S. 271
state or states, and the proper citizenship must exist when the
action is commenced as well as when the petition for removal is
filed.
Sewing Machine
Cases, 18 Wall. 553;
Vannevar v.
Bryant, 21 Wall. 41;
Bible Society v.
Grove, 101 U. S. 610;
Cambria Iron Company v. Ashburn, 118 U. S.
54;
Hancock v. Holbrook, 119 U.
S. 586;
Fletcher v. Hamlet, 116 U.
S. 408. It does not appear from either of these
petitions and affidavits or elsewhere in the record that diverse
citizenship as to the parties therein named existed at the time of
the commencement of the suit, nor that diverse citizenship existed
between the complainant and all the necessary defendants at the
time the petitions and affidavits were severally filed. The cause
was not properly removed, and the state court has never lost
jurisdiction.
Stevens v. Nichols, 130 U.
S. 230;
Crehore v. Ohio & Mississippi Railway
Co., 131 U. S. 240, and
cases cited.
The decree is reversed and the record remitted to the
district court with a direction to remand the cause to the state
court.