A., a citizen of Florida, with other persons, some of whom were
citizens of New York, was sued by a citizen of the latter state, in
a court thereof. The plaintiff, in his petition, alleged that the
defendants held all the franchises and property of a certain
railroad company, and prayed that they be required to hold the
income of the railroad in trust for the payment of a judgment
theretofore rendered in his favor in that court against the
company, and that they be directed to pay him the amount thereof,
and for other relief. He averred that A. was endorser on part of
the notes on which the judgment had been rendered. There was a
judgment in favor of all the defendants, which the Court of Appeals
affirmed, except as to A. The cause was remanded for a new trial as
to him, solely on account of his alleged liability as such
endorser. After the remittitur went down to the court of original
jurisdiction, and before such new trial, A. filed his petition in
due form, accompanied by the necessary bond for the removal of the
suit as against him to the proper circuit court of the United
states, under the Act of July 27, 1866, 14 Stat. 306.
Held
that the matter in dispute being sufficient, A. was entitled to a
removal of the suit.
This was a suit commenced Feb. 16, 1868, in the supreme court of
New York, by Francis Vose against the Florida Railroad Company,
David L. Yulee, Edward N. Dickerson, Marshall O. Roberts, and Isaac
K. Roberts. The prayer of the complaint was that Edward N.
Dickerson, Marshall O. Roberts, and all other associates of Edward
N. Dickerson, who, when discovered, should be made parties, might
be required to pay a judgment which had been rendered in favor of
Vose against the Florida Railroad Company in the supreme court of
New York, on which there was due $136,534.63, and interest from
Feb. 1, 1867; that Dickerson, Yulee, Marshall O. and Isaac K.
Roberts, and their associates, who it was alleged held all the
franchises
Page 99 U. S. 540
and property of the company, might be required to hold the
income of the railroad, in trust for the payment of the amount of
the judgment; that certain securities alleged to be in the hands of
Yulee might be also subjected to the payment of the debt, and for
other relief. It further appeared from the averments in the
complaint that Yulee was liable as endorser on part of the notes on
which the judgment was rendered, and this allegation was not denied
in his answer, but no judgment was specifically asked against him
on that account.
On the trial of the cause, the complaint was dismissed as to all
the defendants. This judgment was affirmed in all respects by the
supreme court in general term; but in the Court of Appeals it was
reversed as to Yulee, and the cause remanded for a new trial as to
him, on account of his liability as endorser of the notes. As to
all the other defendants and all other relief asked there was an
affirmance.
On the 5th of June, 1873, after the mandate went down from the
Court of Appeals, Yulee filed in the trial court his petition,
accompanied by the necessary bond, for the removal of the suit as
against him to the circuit court of the United states for the
Southern District of New York, under the Act of July 27, 1866, 14
Stat. 306. That statute provides that if in any suit already
commenced, or which might thereafter 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, a citizen of
the state in which the suit is brought is or shall be a defendant;
and if the suit, so far as it 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 one in which there can be a final
determination of the controversy so far as it concerns him, without
the presence of the other defendants as parties,
"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 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 is pending, . . . and it shall
thereupon be the duty of the state court . . . to proceed no
further in the cause as against the defendant
Page 99 U. S. 541
so applying for its removal."
The petition for removal set forth, in sufficient form and with
sufficient particularity, the citizenship of Vose in New York, and
of Yulee in Florida, both then and at the time of the commencement
of the suit, but it made no mention of the citizenship of the other
defendants. In all other respects the petition met fully the
requirements of the statute. The accompanying bond was also correct
in form, and no objection was made to its sufficiency. Notice of an
intention to make the application for the removal was served on the
attorneys of Vose on the 17th of April, 1873. Accompanying the
petition was an affidavit of Dickerson, under date of June 4, 1873,
to the effect that he, Dickerson, and the defendants Roberts were
citizens of the State of New York.
The cause came on for trial June 9, 1873, and a jury was sworn,
when the counsel for Yulee called the attention of the court to the
proceedings which had been taken for the removal, and moved to
dismiss the complaint for want of jurisdiction. This motion was
overruled, and the trial proceeded, resulting in a verdict, by
order of the court, against Yulee for $168,589.30, on which
judgment was rendered. Exception to the ruling of the court on the
question of removal was duly taken. Upon this state of the record,
the case was taken by proper proceedings to the Court of Appeals,
where the judgment was affirmed, on the ground that the suit was
not removable under the act of 1866 when the petition for removal
was filed, because the defendant Yulee was then the only defendant.
This ruling of the Court of Appeals is now assigned for error.
Page 99 U. S. 544
MR. CHIEF JUSTICE WAITE, after stating the case, delivered the
opinion of the Court.
When this suit was commenced in the state court, Vose, the sole
plaintiff below, was a citizen of New York, and Yulee a citizen of
Florida. If there had been no other defendant but Yulee, he could
then have removed the cause to the circuit court, under sect 12 of
the Judiciary Act of 1789, 1 Stat. 79, on filing his petition to
that effect, and giving the necessary security at the time of
entering his appearance. His joinder with other defendants,
however, prevented this at that time, and as the suit then stood,
it was impossible for him to proceed under the act of 1866,
because, although his liability as endorser, in which his
co-defendants had no interest, was shown, he was united with them
in respect to other matters where there could be no final
determination of the controversy, so far as it concerned him,
without their presence. When the Court of Appeals decided that
there could be no relief in the action, except so far as it related
to the liability of Yulee as endorser of the notes, the other parts
of the case were disposed of, and that which related to Yulee alone
left for final determination. This action of the Court of Appeals
separated the controversy in which Yulee was alone concerned as
defendant from the rest of the case, and put him for the first time
in a condition to invoke the aid of the act of 1866. It is true he
was then the sole remaining defendant, but it was in a suit which
had been commenced against him and others, and which was still
pending undisposed of as to him. Under these circumstances, we are
clearly of the opinion that the case was removable notwithstanding
the final judgment in favor of all the other defendants in respect
to all the other matters in controversy.
Page 99 U. S. 545
This disposes of the question on which the Court of Appeals
based its decision, but as the state court was not bound to
surrender its jurisdiction until a case had been made which, upon
its face, gave Yulee a right to the transfer, it remains to
consider whether the record shows that what was done had that
effect.
The petition and accompanying affidavits and bond were filed in
court June 5, 1873. This was before the trial and thus in time,
under the act of 1866, which in this respect differs from the act
of 1789. When the cause was called for trial and after the jury was
sworn, the counsel of Yulee directed the attention of the court to
the petition for removal, and asked that the complaint be dismissed
for want of jurisdiction. This was in effect asking the court to
proceed no further in the cause, as it had been withdrawn from the
jurisdiction by reason of the proceedings for removal. As no
objection was made specifically to the bond which was offered, we
are to presume that the security was satisfactory, and that the
court refused to withhold further proceedings because a case for
removal had not been made.
We think the application was made in time. The trial had not
commenced. The most that can be said is that preparations were
being made for a trial.
The petition and the affidavits which accompanied it are to be
taken together as part of the same instrument. They are also to be
considered in connection with the other parts of the record to
which they belong.
The evident purpose of the act of 1866 was to relieve a person
sued with others in the courts of a state of which he was not a
citizen, by one who was a citizen, from the disabilities of his
co-defendants in respect to the removal of the litigation to the
courts of the United states, if he could separate the controversy,
so far as it concerned him, from the others, without prejudice to
his adversary. In view of the fact that sometimes in the progress
of a cause circumstances developed themselves which made such a
transfer desirable, when at first it did not appear to be so, the
right of removal in this class of cases was kept open until the
trial or final hearing, instead of being closed after an entry of
appearance, as was the rule under the act of
Page 99 U. S. 546
1789. We think this gives such a party the right of removal at
any time before trial, when the necessary citizenship of his
co-defendants is found to exist, and the separation of his interest
in the controversy can be made. There is nothing in the act to
manifest a contrary intention, and this construction does no more
than give the party to whom this new privilege is granted an
opportunity of availing himself of any circumstances that may
appear in his favor previous to the time when, he is called upon
finally to act. In
Insurance Company v. Pechner,
95 U. S. 183, we
held that the act of 1789 clearly had reference to the citizenship
of the parties when the suit was begun, because the party entitled
to the removal was required to make his election when he entered
his appearance. But here a party otherwise entitled to a removal is
embarrassed by the presence of those whom he cannot control. In
view of this, the time of making his election is extended until he
is brought to trial, and it is not at all in conflict with that
case to say that he may avail himself of his release from the
operation of the disabilities growing out of his joinder in the
action with other defendants, whenever that release occurs, if
before trial or final hearing as to him.
When the application for removal was made, it appeared on the
face of the record that Yulee, a citizen of Florida, had been sued
with other defendants by Vose, a citizen of New York, in the courts
of the State of New York, and that a part of the other defendants
with whom he had been joined were then citizens of the state of New
York. It also appeared that the controversy, so far as it concerned
Yulee, not only could be, but actually had been by judicial
determination, separated from that of the other defendants. This,
as we think, gave Yulee a right to the transfer of his part of the
suit to the circuit court, and required the state court to proceed
no further. Inasmuch as the Court of Appeals has sustained the
judgment given after the refusal to permit the transfer to be made,
the judgment of the Court of Appeals will be reversed and the cause
remanded for such further action in accordance with this opinion as
may be necessary, and it is
So ordered.
