Under the Act of March 3, 1887, c. 373, corrected by the Act of
August 13, 1888, c. 866 (as under earlier acts), one of several
defendants, being a citizen of the same state as a plaintiff,
cannot remove a cause from a state court into the circuit court of
the United States upon the ground of prejudice and local influence
between himself and the other defendants.
A defendant who wrongfully removes a cause from a state court
into the circuit court, from whose decree appeals are taken by
himself and other parties to this Court, must, upon reversal of the
decree by this Court for want of jurisdiction in the circuit court,
pay the costs in that court as well as of all the appeals to this
Court.
This was an action brought December 17, 1878, in the District
Court of Falls County, in the State of Texas, to recover two
undivided thirds of land in that county, of which Edward Hanrick, a
citizen of that state, was seised at the time of his death, in
1865, intestate, and without issue. His
Page 153 U. S. 193
heirs at the time when this suit was brought were his sister,
Elizabeth, Nicholas Hanrick and others, the children of his
deceased brother James, and Edward G. Hanrick, the only son of
another deceased brother. The plaintiffs were Elizabeth and the
children of James, and were some of them citizens of the State of
New York, and the others subjects of the United Kingdom of Great
Britain and Ireland, and residents of Ireland. The defendants were
Edward G. Hanrick, a citizen of Texas residing in the Northern
District of Texas, who contended that the plaintiffs had no title
because both Elizabeth and James were aliens, and Philip O'Brien
and wife residents of the State of Massachusetts, and citizens of
the United States, to whom some of the plaintiffs had conveyed
their interests by a deed absolute in form, but alleged to be in
trust for the grantors.
The petition, which stated the above facts, was afterwards
amended by joining as defendants William Brady, a citizen of New
York, John B. Sargent, a citizen of Massachusetts, and Wharton
Branch and Edward J. Gurley, citizens of Texas. Brady, Sargent, and
Branch severally claimed interests in the lands under conveyances
from the defendants O'Brien and wife, and Gurley claimed an
undivided third of the land under a deed from Edward G. Hanrick
pursuant to a contract made by Edward Hanrick in his lifetime. The
amended petition prayed for a partition of the whole land, having
due regard to any valid conveyances of interests therein, and to
other equitable considerations.
On June 15, 1887, Brady, relying on section 639 of the Revised
Statutes, and the Acts of March 3, 1875, c. 137, and March 3, 1887,
c. 373, filed in the state court a petition, supported by his
affidavit, for the removal of the suit into the circuit court of
the United States on the ground that there was in the cause a
controversy between himself, a citizen of New York, and the
defendants Edward G. Hanrick, Branch, and Gurley, citizens of
Texas, and that, by reason of prejudice and local influence created
by said Hanrick, Brady could not obtain justice in the courts of
the state. Thereupon, the state court ordered the case to be
removed as prayed for.
Page 153 U. S. 194
On November 21, 1887, the defendants Hanrick and Gurley moved
the circuit court to remand the case to the state court because
there was no controversy between the defendant Brady and the
plaintiffs, because Brady was a citizen of the same state as some
of the plaintiffs, because all the defendants were not citizens of
a different state from the plaintiffs, because there was no
separable controversy between Brady and any other party to the
suit, and for other reasons.
On November 23, 1887, the circuit court, against the exception
of the defendants Hanrick and Gurley, made an order denying their
motion to remand the case to the state court, reciting that it had
been made to appear to the court that, from prejudice and local
influence, the defendant Brady would not be able to obtain justice
in the courts of the state, and adjudging that the cause be removed
from the state court to the circuit court.
The pleadings were then, by order of the circuit court, reformed
according to the equity rules of the court, and, after further
proceedings and hearings, it was decreed that the parties were
entitled to undivided interest in the land as follows: the
plaintiffs, two-ninths, the defendant Edward G. Hanrick,
two-ninths, the defendants Brady and O'Brien and wife, two-ninths,
and the defendant Gurley, one-third. A final decree of partition
was entered accordingly, from which appeals were taken to this
Court by the plaintiffs, by the defendant Hanrick, and by the
defendants Brady and O'Brien and wife.
MR. JUSTICE GRAY, after stating the case, delivered the opinion
of the Court.
The first question to be decided is whether the circuit court of
the United States lawfully acquired and retained jurisdiction of
the case. The determination of this question really
Page 153 U. S. 195
depends upon the construction and effect of the Act of March 3,
1887, c. 373, as corrected by the Act of August 13, 1888, c. 866,
but will be aided by referring to the earlier acts of Congress, and
to the construction of those acts by this Court.
The Judiciary Act of September 24, 1789, c. 20, § 12,
authorized "a suit" commenced in any state court "by a citizen of
the state in which the suit is brought against a citizen of another
state" to be removed by the defendant into the circuit court of the
United States upon a petition filed in the state court. 1 Stat. 79.
Under that statute, it was held to be essential to the jurisdiction
of the circuit court that all the defendants should be citizens of
a different state from any of the plaintiffs.
Strawbridge
v. Curtiss, 3 Cranch 267;
Coal Co.
v. Blatchford, 11 Wall. 172;
Barney v.
Latham, 103 U. S. 205,
103 U. S.
209.
The earliest act of Congress for the removal of causes on the
specific ground of prejudice and local influence was the Act of
March 2, 1867, c.196, by which,
"where a suit is now pending or may hereafter be 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,"
the suit might be removed into the circuit court of the United
States by "such citizen of another state, whether he be plaintiff
or defendant," upon filing a petition and affidavit in the state
court. 14 Stat. 558.
Under that act it was held, after able arguments and full
consideration, that the phrase "a suit in which there is
controversy between a citizen of the state in which the suit is
brought and a citizen of another state" had the same meaning as the
shorter description, in the act of 1789 of "a suit between" such
parties; that each term implied a proceeding in a court of justice
by a party plaintiff against a party defendant, and consequently
that all the defendants must be citizens of other states from any
of the plaintiffs, and that one of several defendants could not
remove the suit.
Case of Sewing Machine
Cos., 18 Wall. 553,
85 U. S. 585;
Vannevar v.
Bryant, 21 Wall. 41;
Blake v. McKinn,
103 U. S. 336,
103 U. S.
338-339.
The act of 1867 was substantially reenacted in clause 3 of
Page 153 U. S. 196
section 639 of the Revised Statutes, which, however, like the
act of 1789, described the case to be removed as "a suit" between a
citizen of the state in which it is brought and a citizen of
another state, instead of describing it, as in the act of 1867, as
"a suit in which there is controversy between" such parties, and
was likewise held to require that all the necessary parties on one
side of the suit should be citizens of different states from those
on the other, and not to permit a removal because of a separable
controversy between one of the defendants and the plaintiff.
Myers v. Swann, 107 U. S. 546;
American Bible Society v. Price, 110 U. S.
61;
Cambria Iron Co. v. Ashburn, 118 U. S.
54;
Hancock v. Holbrook, 119 U.
S. 586;
Young v. Parker, 132 U.
S. 267,
132 U. S.
270-271.
The Act of March 3, 1875, c. 137, § 2, authorized any suit
in a state court "in which there shall be a controversy between
citizens of different states" to be removed by "either party" into
the circuit court of the United States, and added this clause:
"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 plaintiffs or defendants actually interested in such
controversy may remove said suit into the circuit court of the
United States."
18 Stat. 470.
Under that statute, it has been uniformly held that in order to
justify a removal of the suit because of "a controversy which is
wholly between citizens of different states," the whole subject
matter of the suit must be capable of being finally determined
between them, and complete relief afforded as to the separate cause
of action without the presence of other persons originally made
parties to the suit, and that when there was but one indivisible
controversy between the plaintiffs and the defendants, as in the
case of a suit for partition, the suit could not be removed by one
of several plaintiffs or defendants.
Blake v. McKim,
103 U. S. 336;
Torrence v. Shedd, 144 U. S. 527;
Bellaire v. Baltimore & Ohio Railroad, 146 U.
S. 117;
Wilson v. Oswego Township, 151 U. S.
56;
Merchants' Cotton Press Co. v. Ins. Co. of North
America, 151 U. S. 368.
Page 153 U. S. 197
The act of 1875 contained nothing concerning removal on the
specific ground of prejudice or local influence, and did not repeal
clause 3 of section 639 of the Revised Statutes.
Bible Society
v. Grove, 101 U. S. 610;
Hess v. Reynolds, 113 U. S. 73;
Baltimore & Ohio Railroad v. Bates, 119 U.
S. 464.
The Act of March 3, 1887, c. 373, corrected by the Act of August
13, 1888, c. 866, was intended, as this Court has often recognized,
to contract the jurisdiction of the circuit courts of the United
States, whether original over suits brought therein or by removal
from the state courts. It not only amends the act of 1875, but it
allows to none but defendants the right to remove any case
whatever, and, by new regulations of removals for prejudice or
local influence, supersedes and repeals the earlier statutes upon
this subject. 24 Stat. 553; 25 Stat. 434;
Smith v. Lyon,
133 U. S. 315;
Fisk v. Henarie, 142 U. S. 459;
Tennessee v. Union & Planters' Bank, 152 U.
S. 454.
This act, after other provisions, which need not be stated,
reenacts the last clause of section 2 of the act of 1875, above
quoted, except that it omits the words "plaintiffs or." It then
takes up the subject of the act of 1867, and enacts that in the
case, defining it in the words of that act, "where a suit is now
pending or may be hereafter brought, in any state court," a removal
may be had, not, as under that act, by "such citizen of another
state, whether he be plaintiff or defendant," but only by "any
defendant being such citizen of another state," and not upon
petition to the state court, and the mere affidavit of the
petitioner to his belief in prejudice or local influence, but upon
petition to the circuit court of the United States, and "when it
shall be made to appear to said circuit court" that prejudice or
local influence exists.
Whether this act permits one of two or more defendants to remove
any case which he could not have removed under earlier statutes is
a question upon which there have been conflicting decisions in the
circuit courts, and upon which we are not now required to express a
definitive opinion.
Beyond doubt, the existing act, like every act which
preceded
Page 153 U. S. 198
it, does not authorize one defendant to remove a suit into the
circuit court of the United States from a state court, upon the
ground of prejudice or local influence between himself and other
defendants. The whole object of allowing a defendant to remove a
suit or controversy into the circuit court of the United States is
to prevent the plaintiff from obtaining any advantage against him
by reason of prejudice or local influence. Unless such prejudice or
influence in favor of the plaintiff is alleged and proved, he
cannot be prevented, under the clause of the existing statute upon
this subject, from prosecuting his suit against all the defendants
in the court in which he originally brought it.
The present case was a suit for partition, to which all the
plaintiffs and all the defendants were indispensable parties.
Torrence v. Shedd, 144 U. S. 527;
De la Vega v. League, 64 Tex. 205;
Stark v.
Carroll, 66 Tex. 393. Each and all of the defendants contested
the rights which the plaintiffs asserted. The defendants Brady was
a citizen of the same state as some of the plaintiffs, and the only
prejudice and local influence which he alleged as a ground of
removal was between himself and other defendants. For this reason,
independently of other reasons urged against the validity of the
removal, Brady's removal of the cause into the circuit court of the
United States was not warranted by any of the acts of Congress on
which he relied.
Brady, having wrongfully removed the case into the circuit
court, must pay the costs in that court, as well as the costs of
the three appeals to this Court.
Mansfield &c. Railway Co.
v. Swan, 111 U. S. 379;
Torrence v. Shedd, and
Tennessee v. Union &
Planters' Bank, above cited.
Appeal of the plaintiffs sustained, and decree reversed,
with costs of the three appeals against Brady, and case remanded to
the circuit court, with directions to render judgment against him
for costs in that court, and to remand it to the state
court.
