Washington Imp. Co. v. Kansas Pac. Ry. Co.

MILLER, Circuit Justice (orally). This motion must he denied. This is a “suit of a civil nature at law” within the meaning of the ant of congress of March 3d, 1875. The statutes of Kansas so treat it, hoth in the procedure and the judgment to be rendered. Gen. St. 1868, p. 766. It was substantially so held by this court in a case whose judgment was affirmed last winter by the supreme court, in which it was decided that the judgment in mandamus had the conelusiveness of judgments in other eases as to matters directly involved and determined. Block v. Commissioners, 99 U. S. 686. This litigation relates to property rights, and the controversy is a suit within the language, purpose, and policy of the removal act. The writ of mandamus in such eases as this does not retain its prerogative character, and this is really a civil proceeding to determine the rights of the parties in respect to property. It is my individual judgment that the words “suit of a civil nature at law” do not relate to the form of the suit or proceeding so much as to its substance and nature, and are not to be taken in the restricted sense of being limited to a common law action strictly, but rather in contradistinction from suits in admiralty, in equity, and proceedings of a criminal nature. The present proceeding is, therefore, a suit at law within the meaning of the removal act. The supreme court, in cases familiar to the bar, has defined the word “suit,” and has not placed any narrow construction upon it. A condemnation proceeding in the exercise of the right of eminent domain, where the controversy had assumed the shape of an adversary proceeding in respect to the measure of compensation, and was pending in the state court, was held by the circuit court for Minnesota,—Patterson v. Mississippi & R. R. Boom Co. [Cese No. 10,829],—and on error by the supreme court (98 U. S. 403), to be removable from the state to the federal court. The motion to remand is denied. Motion denied.