The Act of March 3, 1887, 24 Stat. 552, c. 373, with regard to
the removal of causes from state courts, corrected by the Act of
August 13, 1888, 25 Stat. 433, c. 866, repealed subdivision 3 of
Rev.Stat. § 639.
The words in that act "at any time before the trial thereof,"
used in regard to removals "from prejudice or local influence,"
were used by Congress with reference to the construction put on
similar language in the Act of March 3, 1875, 18 Stat. 470, c. 137,
by this Court, and are to receive the same construction, which
required the petition to be filed before or at the term at which
the cause could first be tried, and before the trial thereof.
The Court stated the case as follows:
This action was commenced in the Circuit Court of the State of
Oregon for the County of Wasco, on November 13, 1883, by James H.
Fisk against Daniel v. B. Henarie, Eleanor Martin, Peter Donahue,
Thomas S. Martin, Edward Martin, and John D. Wilcox, to recover a
commission of ten percent, amounting to $60,000, on an alleged sale
of a tract of land known as "The Dalles Military Road Grant,"
containing about 600,000 acres, situated in the Counties of Wasco,
Grant, and Baker. The first three of the defendants were residents
and citizens of California, and the latter three of Oregon. Service
of summons was had on the citizens of Oregon, and they appeared and
answered. On February 2, 1884, publication of the summons was
ordered as to the California defendants, who appeared and answered
August 21, 1884. The answers of the defendants controverted the
allegations on which the plaintiff based his demand, and contested
his right to recover anything from them, or either of them, on any
sale of the lands. On September 1, 1884, plaintiff replied to the
answers, and on the 16th of the same month, on motion of the
defendants,
Page 142 U. S. 460
the venue was changed to Multnomah County, where the plaintiff
and the Oregon defendants resided when the action was commenced,
none of the parties residing in Wasco County. The case was
afterwards tried before a jury in the Circuit Court for Multnomah
County, who, on April 15, 1885, found a verdict under the direction
of the court for the defendants, on which there was a judgment for
costs in their favor, which judgment was on January 11, 1886,
reversed by the supreme court, 13 Or. 156, and a new trial ordered,
which, being had, resulted May 21, 1886, in a verdict for the
plaintiff for the sum of $60,000. On the 18th of May, before the
jury was impaneled, the death of Peter Donahue was suggested, and
his executors, James M. Donahue, Annie Donahue, and Mary Ellen Von
Schroeder, citizens of California, were substituted as defendants.
The case was afterwards heard on the motion of plaintiff for
judgment, and two motions of the defendants for a new trial, and
for a judgment notwithstanding the verdict. On June 30, 1886,
plaintiff's motion was denied and defendants' for judgment
non
obstante allowed on the ground that the complaint did not
state facts sufficient to constitute a cause of action, and
thereupon judgment was entered for costs in favor of the
defendants, which judgment was on October 20, 1886, on writ of
error, reversed by the supreme court, 14 Or. 29, and the cause
remanded for further proceedings according to law. On December 18,
1886, the circuit court allowed the motion for a new trial and set
aside the verdict, from which order the plaintiff appealed to the
supreme court, and the appeal was on April 18, 1887, dismissed. 15
Or. 89. Thereafterwards the cause was again tried, and the jury,
being unable to agree, were discharged without finding a verdict.
July 30, 1887, the defendants Henarie, Eleanor Martin, and the
executors of Peter Donahue, deceased, applied to the state court
for the removal of the cause to the Circuit Court of the United
States for the District of Oregon, and on the first day of August,
1887, an order removing was entered by the judge of the state
court.
Page 142 U. S. 461
The petition for removal was filed on behalf of those defendants
who were citizens of California in the state circuit court, and
addressed to the judge thereof, and set up the citizenship of the
petitioners; that at the time the action was commenced and the
petition was filed, there was a controversy therein between the
plaintiff and the petitioners; the amount involved; the alleged
cause of action; the issue thereon, and proceeded thus:
"That said action has not been tried and is now pending in the
above-entitled court; that from prejudice and local influence, your
petitioners will not be able to obtain justice in this Court or in
any other state court to which the said defendants may, under the
laws of this state, remove said cause; that the other defendants in
said action, Thos. S. Martin, Edward Martin, and John D. Wilcox,
now and at all times since the commencement of said action have
been citizens and residents of the State of Oregon, residing in
Portland, therein; that your petitioners desire to remove said
cause to the Circuit Court of the United States for the District of
Oregon under the provisions of the Act of Congress approved March
3, 1887. Your petitioners further say that they have filed the
affidavit required by the statute in such cases, and they herewith
offer their bond, with surety, in the penal sum of one thousand
dollars, conditioned as by the statutes of the United States
required. Your petitioners therefore pray that said bond may be
accepted and approved, and that said cause may be removed into the
next Circuit Court of the United States for the District of Oregon,
and that no further proceedings may be had therein in this
Court."
Henarie, one of the petitioners, verified the petition upon
belief, and it was accompanied by the affidavit of Henarie and
Eleanor Martin to the effect that they had reason to believe, and
did believe, and so stated, that, from prejudice and local
influence, the defendants, to-wit, the affiants and the executors
of Peter Donahue, would not be able to obtain justice in said state
court or in any other state court to which said defendants, under
the laws of the State of Oregon, had the right to remove the same
on account of such prejudice and local influence. The state court
ordered the removal under the Act of Congress of March 3, 1887.
Page 142 U. S. 462
The transcript was filed in the circuit court of the United
States September 30, 1887, and on October 8th following, a motion
was made to remand upon the grounds that the application for the
removal of the cause was not made in time, or before trial of the
cause in the state court; that the petition and affidavit were
insufficient in that they did not set forth the facts and reasons
showing the alleged prejudice or local influence; that the removal
papers were not served on the plaintiff in accordance with the
rules of practice in the state courts, and that the petition and
accompanying papers did not show a cause for removal, and the
motion concluded with a denial of the existence of any prejudice or
local influence which would prevent the defendants, or any of them,
from obtaining justice in the state courts or at all, and asked the
court to examine into the truth of the affidavits alleging
prejudice and local influence, and the grounds thereof, and
thereupon to direct the action to be remanded to the court from
whence it was removed. This motion referred to the record and
certain affidavits filed in its support. The motion was denied by
the circuit court October 26, 1887, (the opinion will be found
reported in 32 F. 417), and on December 17, the cause was tried by
a jury, and a verdict rendered for the defendants. Judgment was
thereupon entered against the plaintiff and in favor of the
defendants for costs. A motion for a new trial was filed assigning,
among other grounds, that the court had no jurisdiction of the
parties or of the subject matter of the action, and erred in
denying the motion to remand. This motion was overruled, 35 F. 230,
and a writ of error sued out from this Court.
Section 2 of the Act of Congress of March 3, 1887, entitled
"An act to amend the act of Congress approved March third,
eighteen hundred and seventy-five, 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,' and to further regulate the jurisdiction of circuit
courts of the United States, and for other purposes,"
24 Stat. c. 363, pp. 552, 553, is as follows:
"SEC. 2. That any suit of a civil nature at law or in
Page 142 U. S. 463
equity, arising under the Constitution 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 United 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 nonresidents 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 prejudice or local influence, to remove
said cause,
provided that if it further appear that said
suit can be fully and justly determined as to the other defendants
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, so far as relates to such other defendants, to
the state court, to be
Page 142 U. S. 464
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 affidavit 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 remanding such cause shall be allowed. "
Page 142 U. S. 465
MR. CHIEF JUSTICE FULLER, after stating the facts as above,
delivered the opinion of the Court.
After this case had been pending in the state courts from
November 13, 1883, to August 1, 1887, had been tried three times
before a jury in the circuit court, there being one verdict for
defendants, one for plaintiff, and one disagreement, and been heard
in various phases three times in the supreme court of the state,
the application was made for removal. Was this application in time?
This question is to be determined upon a proper construction of
section 2 of the Act of Congress of March 3, 1887, for it is not,
and could not be, contended that the right of removal could then
have been invoked on the ground of diverse citizenship. The
application was filed July 30, 1887, and by its terms purported to
be made under the act of 1887, to which act the order of the state
court referred. Indeed, if subdivision 3 of section 639 of the
Revised Statutes were repealed by the act of 1887, or, since some
of the defendants were then and at the commencement of the suit
citizens of the same state as the plaintiff, if a removal could be
had at all, it could only be under the act of 1887.
The Judiciary Act of 1789. 1 Stat. c. 20, § 12, pp. 73, 79,
provided that a party entitled to remove a cause should file his
petition for such removal "at the time of entering his appearance
in such state court." 1 Stat. 79.
The Act of July 27, 1866, relating to separable controversies,
provided that
"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,"
etc. 14 Stat. 306, c. 388.
The Act of March 2, 1867, relating to removal on the ground of
prejudice or local influence, provided that the plaintiff or
defendant "may at any time before the final hearing or trial
Page 142 U. S. 466
of the suit, file a petition in such state court for the removal
of the suit," etc. 14 Stat. 558, c. 196.
The first subdivision of section 639 of the Revised Statutes was
a reenactment of the twelfth section of the Judiciary Act, the
second subdivision, of the Act of July 27, 1866, and the third
subdivision of the Act of March 2, 1867, and this subdivision
adopted the phraseology of the Act of July 27, 1866, namely, "At
any time before the trial or final hearing" of the suit.
The Act of March 3, 1875, said nothing about prejudice or local
influence, but provided, in the case of diverse citizenship, that
the party desiring to remove a cause should make and file his
petition in the state court "before or at the term at which said
cause could be first tried, and before the trial thereof." 18 Stat.
470, 471, c. 137.
This act repealed the first and second subdivisions of section
639 of the Revised Statutes, but left subdivision 3 unrepealed.
Baltimore & Ohio Railroad v. Bates, 119 U.
S. 464,
119 U. S.
467
In
Insurance Co. v.
Dunn, 19 Wall. 214, it was held that the word
"final," as used in the phrase, "at any time before the final
hearing or trial of the suit," applied to the word "trial" as well
as to the word "hearing." And it has been often ruled that if the
trial court had set aside a verdict and granted a new trial, or if
the appellate court had reversed the judgment and remanded the case
for trial
de novo, it was not too late to apply to remove
the cause under the act of 1867 and subdivision 3.
Vannevar v.
Bryant, 21 Wall. 41;
Jifkins v. Sweetzer,
102 U. S. 177;
Baltimore & Ohio Railroad v. Bates, 119 U.
S. 464,
119 U. S. 467,
and cases cited. But these and like decisions were inapplicable to
proceedings under the act of 1875, as the petition was thereby
required to be filed "before or at the term at which said cause
could be first tried and before the trial thereof." This has been
construed to mean the first term at which the cause is in law
triable -- the first term in which the cause would stand for trial
if the parties had taken the usual steps as to pleadings and other
preparations, and it has also been decided that there cannot be a
removal after the hearing on a demurrer to a complaint because
Page 142 U. S. 467
it does not state facts sufficient to constitute a cause of
action.
Gregory v. Hartley, 113 U.
S. 742,
113 U. S. 746;
Alley v. Nott, 111 U. S. 472;
Laidly v. Huntington, 121 U. S. 179.
The Act of March 3, 1887, and also as corrected by the Act of
August 13, 1888, 25 Stat. 435, c. 866, provided that
"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
prejudice or local influence, to remove said cause."
In view of the repeated decisions of this Court in exposition of
the acts of 1866, 1867, and 1875, it is not to be doubted that
Congress, recognizing the interpretation placed on the word
"final," in the connection in which it was used in the prior acts,
and the settled construction of the act of 1875, deliberately
changed the language, "at any time before the final hearing or
trial of the suit," or "at any time before the trial or final
hearing of the cause," to read, "at any time before the trial
thereof," as in the act of 1875, which required the petition to be
filed before or at the term at which the cause could first be
tried, and before the trial thereof. The attempt was manifestly to
restrain the volume of litigation pouring into the federal courts,
and to return to the standard of the Judiciary Act, and to effect
this in part by resorting to the language used in the act of 1875,
as its meaning had been determined by judicial interpretation. This
is the more obvious in view of the fact that the Act of March 3,
1887, was evidently intended to restrict the jurisdiction of the
circuit courts, as we have heretofore held.
Smith v. Lyon,
133 U. S. 315;
In re Pennsylvania Company, 137 U.
S. 451.
We deem it proper to add that we are of opinion that the act of
1867, or subdivision 3 of section 639, was repealed by the act of
1887. The subject matter of the former acts is substantially
covered
Page 142 U. S. 468
by the latter, and the differences are such as to render the
intention of Congress in this regard entirely clear. Under the
previous acts, the right of removal might be exercised by plaintiff
as well as defendant; the application was addressed to the state
court; there was no provision for the separation of the suit; the
ground of removal was based upon what the affiant asserted he had
reason to believe and believed, and action on the motion to remand
could be reviewed on appeal or writ of error or by mandamus; while
under the latter act the right is confined to the defendant; the
application is made to the circuit court; the suit may be divided
and remanded in part; the prejudice or local influence must be made
to appear to the circuit court -- that is, the circuit court must
be legally satisfied, by proof suitable to the nature of the case,
of the truth of the allegation that, by reason of those causes, the
defendant will not be able to obtain justice in the state courts,
and review on writ of error or appeal or by mandamus is taken away.
In re Pennsylvania Company, 137 U.
S. 451;
Malone v. Richmond & Danville Railroad
Co., 35 F. 625. The repealing clause in the act of 1887 does
not specifically refer to these prior acts, but declares that "all
laws and parts of laws in conflict with the provisions of this act
be, and the same are hereby, repealed." The provisions relating to
the subject matter under consideration are, however, so
comprehensive, as well as so variant from those of the former acts,
that we think the intention to substitute the one for the other is
necessarily to be inferred, and must prevail.
In
King v. Cornell, 106 U. S. 395,
106 U. S. 396,
it was held that subdivision 2 of section 639 was repealed by the
act of 1875, the repealing clause in which was the same as here,
and Mr. Chief Justice Waite, delivering the opinion of the Court,
said:
"While repeals by implication are not favored, it is well
settled that where two acts are not in all respects repugnant, if
the later act covers the whole subject of the earlier and embraces
new provisions which plainly show that it was intended as a
substitute for the first, it will operate as a repeal."
The rule thus expressed is applicable, and is decisive.
Page 142 U. S. 469
Many other questions of interest and importance arise upon this
record, and have been argued by counsel, but the conclusion at
which we have arrived renders their determination unnecessary. We
are of opinion that the application for removal came too late. The
judgment must therefore be
Reversed, and the cause remanded to the circuit court, with
a direction to remand it to the state court.
MR. JUSTICE HARLAN, with whom concurred MR. JUSTICE FIELD,
dissenting.
MR. JUSTICE FIELD and myself do not concur in the construction
which the court places upon the act of 1887.
Section 3 of that act, requiring the petition for removal to be
filed in the state court
"at the time, or at any time before, the defendant is required
by the laws of the state, or the rule of the state court in which
such suit is brought, to answer or plead to the declaration or
complaint of the plaintiff,"
excepts from its operation the cases mentioned in the last
clause of section 2, namely those in which a removal is asked
upon the ground of prejudice or local influence. As to the
latter cases, the statute provides that the removal may be had upon
a proper showing "at any time before the trial." This means at any
time before a trial in which, by a final judgment, the rights of
the parties are determined. Under the act of 1887, there can be no
removal upon the ground of prejudice or local influence unless it
be made to appear to the circuit court of the United States that on
account of such prejudice or local influence, the defendant citizen
of another state cannot obtain justice in the state courts. The
existence of such prejudice or local influence is often disclosed
by a trial in the state court in which the verdict or judgment is
set aside. The fact of prejudice or local influence may be
established by overwhelming evidence; still, under the decision of
the court, there can be no removal if the application for removal
be not made before the first trial. We do not mean to say that
when
Page 142 U. S. 470
a trial is in progress, the cause may be removed before its
termination, even upon the ground of prejudice or local influence.
But if at the time the application is made the cause is not on
trial, and is undetermined -- that is, has not been effectively
tried -- the act of 1887, in our judgment, authorizes a removal, on
proper showing, upon the ground of prejudice or local influence,
although there may have been a trial, resulting in a verdict which
has been set aside.
The error, we think, in the opinion of the Court is in applying
to the act of 1887 the decisions under the act of 1875. The words
in the latter act limiting the time within which the application
for a removal must be made -- "before or at the term at which said
cause could be
first tried, and before the trial thereof"
-- necessarily meant, as this Court has held, the first trial,
whether it resulted in a verdict or not and although the verdict
and judgment may have been set aside, because the express
requirement was that the application for removal must in any event
be made before or
at the term at which said cause
could be
first tried. No such requirement is
found in the act of 1887 in respect to cases sought to be removed
upon the ground of prejudice or local influence, while in respect
to all cases of removal except those upon the ground of prejudice
or local influence, the latter statute provides that the
application shall be made at the time, or at any time before, the
defendant is required by the laws of the state or the rule of the
state court in which the suit is brought to answer or plead to the
declaration or complaint of the plaintiff, the removal,
because
of prejudice or local influence, may be applied for "
at
any time before the trial thereof." This difference in the
language of the two acts means, we think, something more than the
Court attributes to it. Congress could hardly have intended to give
the defendant citizen of another state simply the time between his
answering or pleading, and the calling of his case for the first
trial thereof to determine whether he should apply for a removal
upon the ground of prejudice or local influence. In our judgment,
it meant to give the right of removal upon such ground at any time
when the case is not actually on trial, and when there is in force
no judgment
Page 142 U. S. 471
fixing the rights of the parties in the suit. If a case is open
for trial on the merits, an application for its removal
before that trial commences is made "before the trial thereof." In
our opinion, the interpretation adopted by the Court defeats the
purpose which Congress had in view for the protection of persons
sued elsewhere than in the state of which they are citizens.
