Bryan v. Ponder

By the Court. — McDonald, J. delivering the opinion. [1.] By the 12th section of the Judiciary Act of the United States, passed in 1789, if a suit be commenced in any State Court by a citizen of the State in which the suit is brought, against a citizen of another State, and the matter in dispute exceeds the sum of five hundred dollars, exclusive of costs, to be made appear to the satisfaction of the Court, and the defendant, at the time of entering his appearance in such State Court, file a petition for the removal of the cause for trial in the next Circuit Court, to be held in the District where the suit is pending, and offer good and sufficient security for his entering, in such Court, on the first day of its next session,, copies of the process against him, and also for his there appearing and entering special bail in the cause, if special bail was originally requisite therein, it shall then be the duty of the Slate Court to accept the surety, and proceed no furthei in the cause. We think the Court below was right in disallowing the removal of the cause to the Circuit Court of the United States, but we are not agreed that the ground, on which the presiding Judge put his refusal, ought to be sustained. The Courts of the United States are Courts of limited jurisdiction; and statutes relative to their jurisdiction, and for the transfer of the jurisdiction of causes from a State Court, must be strictly construed. After the time has passed for the removal of a cause from a State Court to a Circuit Court of the United States, the State Court cannot, by agreement, consider a petition for removal as having been filed in proper time, to give the Circuit Court of the United States [483] jurisdiction. Peter’s C. C. Reports 44; Livingston vs. Jefferson, 1 Brochenbrough’s Rep. 211, Gibson vs. Johnson. In this case there are two defendants, one resident in Louisiana and the other in Florida. They are charged with combining and confederating against the cestui que trust of complainant, and were, therefore, properly joined. One of them was served personally, and the other by publication. Only one of the defendants has appeared. For the other defendant, no appearance has been entered. For aught that appears in the record, he is satisfied with the jurisdiction of the State Court He does not join in the petition for removal. The Act of Congress authorized the “defendant’’ to file his petition for the removal of the cause. The persons who make the party-defendants should join in the petition, and one party defendant should not be permitted to change the jurisdiction without the consent of his co-defendants, for if the petition succeed the whole cause must be removed. It cannot be removed in part. If it go, it must go as a whole. “The right to question the jurisdiction is personal to the very parties over whom it is alleged the Court has no jurisdiction. Their co-defendants cannot plead it,or demur, or move to dismiss.” Rice vs. Tarver and others, 4 Ga. Rep. 592. We hold, that under the Act of Congress, all the parties defendants, who have been brought before the Court, by service, in any manner, must join in the petition to remove the case from the jurisdiction in which it was instituted, and that one defend-defendant cannot transfer the jurisdiction for another, any more than he could for that other, object to the jurisdiction. For these reasons we affirm the judgment of the Court as to the first ground of error complained of in the record. [2.] The defendant moved to discharge the writ of ne exeat República, because the affidavit in support of the alligations of the bill was insufficient. The charges in the bill were sufficiently strong and positive to have justified the issuing of the writ, if they had been sworn to positively. They are, however, ^worn to by complainant’s cestui que trust, “to the [484] best of her knowledge and belief.” It is no more than if the phrase “ to the best of her knoweldge and belief” had been annexed to each specific charge made in the bill. Every charge in the bill may be false, and yet each one may be true to the best of the knowledge and belief of the affiant. It is much weaker than an affidavit of belief, for the party does not state that she does believe. The affidavit must be positive as to the intention to leave the State, or of the declarations of the defendant to that effect. Oldham vs. Oldham, 7 Vesey Jr. 410; Etches vs. Lance, Ib. 417. Inasmuch as this Glourt is of opinion that the writ of ne exeat should be discharged because of the insufficiency of the affidavit, it is unnecessary to consider the other point made in the motion complained of, in the bill of exceptions. Judgment reversed.