Cooke v. State National Bank of Boston

Present — Ingraham, Barnard, and Brady, JJ. By the Court Brady, J. -The application'to remove this cause to the United States ■ Court was made under the act of congress, passed March 2,1867. (2 Brightly Dig., 116; 14 Stat. at Large, 558.) All ,of the defendants do not unite in it. Under the 12th section of the judiciary act; (1, Stat. at Large, 79), it was necessary that all- the defendants should join in the application. (Beardsley v. Torrey, 4 Wash. C. C. Rep., 286.) ; It has not been held otherwise in this State. - • The cases to which we were referred in the argument, namely, Norton v. Hayes, (4 Denio, 245), Vandervoort v. Palmer, Cook & Co., (4 Duer, 677), and Livingston v. Gibbons, (4 John., Ch. R., 94), seem to -have, been misunderstood. In -the first of these eases the action was for an. alleged tort against three defendants. The copias was served on - one-only,-the others being ■returned, not found; The right of the plaintiff to proceed in -such an action against one defendant only, was recognized and [503] declared, and the cause held to be one against the defendant served only. This view was in response to the point taken by the plaintiff’s counsel, that all the defendants should have joined in the application. In- the second case the action was brought against a firm, of which Palmer was a member, and upon him alone the process was served. The fight of the defendant served to apply, was based upon the right of the plaintiff to proceed against him, in this State, and to obtain a judgment which would bind his separate estate, and the property of the partnership. It was not necessary to serve the other defendants. This view was in answer to the objection also taken in that case, that all the defendants should have united in the application to remove the cause. In the third case, it was held that where there is no joint trust, interest, duty or concern in the subject-matter of the controversy, a defendant, who is a resident of another State, may be allowed on his application to appear and defend alone so as to enable him to remove the cause. In none of these cases was it doubted or questioned that all the defendants must unite in the application to remove the cause; and the necessity of that element in the proceeding was conceded. Under the act of congress, passed 27th July, 1866 (14 Stat. at Large, 306), application may be made by one defendant if the action has been instituted or prosecuted for the purpose of restraining or enjoining him, or if the suit is one in which it clearly appears that there can be a final determination of the controversy, so far as it concerns him, without the presence of the other defendants as parties in the cause. (Hodgkins et al. v. Hayes, Common Pleas, 1869.) But the action may proceed as to the other defendants. The amendment to this act (2d March, 1867, 14 Stat. at Large, 558), provides that “where a suit is then pending, or may thereafter 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, and the matter in dispute exceeds five hundred dollars exclusive of costs, such citizen of another State, whether he be plaintiff or defendant, if he will make and file in such [504] State court an affidavit stating that he has reason to and does believe, that from prejudice or local influence, he will not bo able to obtain justice in such State court, may at any time file a petition, &c.and on complying with the requirements of the statute as to surety and other appropriate acts, it shall thereupon be the duty of the State court to accept the surety and proceed no further in the suit. The act of 1866, and the amendment thereto, it will be seen, provide for different classes of cases and with different results. The act of 1866 contemplates an application by a defendant, and one of several defendants, if the conditions stated exist, and provides for the continuance of the action as to defendants in the State court, who have not united in the application to remove. The amendment provides for the removal of the action, on application therefor, from the State court, and prohibits any further proceeding therein in such court. The language employed in the act of 1789, and in the amendment to the act of 1866, is substantially the same, and leads to similar conclusions. In the former, the words are: “If a suit be commenced by a citizen of the State in which the suit is brought, against a citizen of another State; ” and in the latter the provision is : “ between a citizen of a State in which the suit is brought, and a citizen of another State.” The acts of 1866 and 1867 enlarge the time in which the application may be made; but that does not affect the question under consideration. It seems to be clear, that if a joinder of all the defendants is necessary, under the act of 1789, it is equally necessary under the act of 1867. It may also be remarked here, that the act of 1866 had made provision for the removal of an action from the State courts by one of several defendants, specifying the circumstances which must occur to justify such a proceeding, and for the continuance of the action in the State court as to the other defendants, notwithstanding such removal. The amendment makes no provision for such continuance, and does not in terms, provide for the removal by one of several defendants, and to it must be opp ed the maxim, Expressio unius est exolusio alterms. This construction of the statute [505] is reasonable and just. The defendants who do not unite in the application, should not be compelled to submit to a change' in the tribunal before which they have been summoned, if the cause, being removed, may proceed against them in the United States court, as one of original jurisdiction; and if it cannot thus proceed, the plaintiff should not be required to yield the proceeding against them, accomplished by the commencement of this action, in the absence of express authority for such a result. It is unnecessary to proceed any further in the consideration of the other questions argued, having arrived at the conclusion stated. The opinion of Justice Ingraham, delivered at a former General Term of this court, affirms the right of the plaintiff to appeal, and to be heard upon the propriety of the order of removal. There is nothing in the case of Stevens et al. v. The Phœnix Fire Ins. Co., of Hartford, recently decided in the Court of Appeals, in conflict with the views herein expressed. In that case the court determined, that the defendants were a non-resident corporation, and that when the statute was strictly complied with, the State court had no further jurisdiction. The application therein was made under the twelfth section of the judiciary act, and the defendant being a citizen of another State, within the meaning of the act, there was no doubt of the validity of the removal. Our view is, that the statute does not embrace such applications as is made by the defendant, and that it therefore has no application. The order of the General Term heretofore pronounced should be affirmed. Order affirmed.