McNeal Pipe & Foundry Co. v. Howland

Smith, 0. J., (after stating the case). The Act of Congress approved on March 3, 1887, and amendatory of that of March 3, 1875, makes important changes in the law which authorizes the transfer of causes pending in a State Court to the United States Circuit Court for trial. It confines the right to apply for and obtain a removal to non-resident defendants, the plaintiff having elected to bring his action in the jurisdiction of a State Court, the sum in controversy must be more than $2,000 instead of $500, the former limit, exclusive of interest and costs; the application must be made at or before the time when, under the law or rules of the State Courts, the defendant is required to answer or plead; a bond properly secured must be entered into for filing a copy of the record in the Circuit Court on the first day of its next sitting “ and for paying all costs that may be awarded if said Court shall hold that the suit was wrongfully removed,” &c. The first section of the amending statute provides, moreover, that in order to the exercise of original jurisdiction, the action “ shall be brought only in the district of either the plaintiff or defendant,” and in the recent case of the County of Yuba v. Pioneer Gold Mining Co., decided in U. S. Circuit Court, N. D., California, in August last, it is held, Mr. Justice Field and the Circuit and District Judges concurring in the opinion, that under the second section no cause can be removed of which the Circuit Court would not have had original cognizance. While it is true that the present suit is brought in a district where one of the defendants resides who is content to let it remain, the other defendant, who seeks another jurisdiction, is a citizen and resident of another State, and if there were a several | controversy between them and it could *206 be severed and removed, the anomalous result would follow that a cause would be there constituted which could not have originated in that Court in that form. The. principle of the ruling in the case cited, seems to apply to the present proposed removal and with the sanction of such high authority agreeing with our own reading of the enactment and its general scope and policy, we must sustain the ruling of the Court below. We pretermit passing upon the other grounds of objection to the transfer of the cause, to-wit: (1) that the application was not made at the first term of the Court as of which the pleadings are filed; the want of diversity in the controversies between the plaintiff and defendants, their connection and dependence, so that presence of each in the one action is necessary to a full determination of the cause; the absence of any provision in the bond for the payment of costs, all of which have great force, since it is sufficient to say the •cause was not in law removable. It may be observed that no order of removal was necessary since a compliance with the prescribed conditions effected a removal, and all required of the State Court was to suspend all further proceedings, unless thereafter the case should be remanded by the Circuit to the State Court for a resumption of jurisdiction. We therefore consider the appeal before us to be from the ruling of the Judge to proceed in the cause. Fitzgerald v. Allman, 82 N. C., 492. As to what are separable controversies, see Ayers v. Wisnall, 112 U. S., 187; St. Louis Railroad Co. v. Wilson, 114 U. S., 60; Louis. & Nash Railroad Co. v. Ide, Ibid., 52; Putnam v. Ingram, Ibid., 57; St. Louis & S. F. Railroad Co. v. Wilson, Ibid., 60. Affirmed.