Ex parte Jones , 66 Ala. 202 ( 1880 )

STONE, J.

The petition sets forth, and the accompanying record shows, that a civil action for damages was pending in the Circuit Court of Morgan county, between Jones as plaintiff, and Cantwell as defendant; and that at the Spring term, 188x, the presiding judge, Hon. H. C. Speake, granted a continuance of the cause, at the instance of the defendant, when the plaintiff was urging a trial. The present application is for a mandamus to the presiding judge, to compel him to hear and try the cause, on the alleged ground, that the defendant showed no sufficient reason why the cause should not be tried, and that the circuit judge erred in granting the continuance. It was settled at an early period of this court’s history, that the matter of granting or refusing continuances rested in the sound discretion of the judge presiding, and would not be controlled by this or any other court. — 1 Brickell’s Digest, 774, § 2. _

_ 2, It is contended for petitioner, that the record discloses the ground on which the continuance was granted, and that the ground thus disclosed is insufficient. It is manifest that this suit was not removed to the Circuit Court of the United States by any order of the Circuit Court of Morgan ; for the judge then presiding overruled the application for removal. In Ex parte Grimball, 61 Ala. 598, we said : “ The jurisdiction of .the State court is not, ipso facto, ousted by the filing of the petition and bond for removal; the court must examine the petition, in connection with the cause to which it relates, to determine whether the cause, and the petitioner’s connection with it, entitle him to the removal; and it is not until this is ascertained that the jurisdiction of the State court ends.” So, we repeat, this cause had not been transferred by any order of tho Circuit Court of Morgan.

3. It is further contended for the petitioner, that the petition for removal is wholly insufficient; and if, in any case, the filing of a petition and the execution of a proper bond can effect á removal, without the order and sanction of the -State court in which the cause originates, the application in the present case must fail, by reason of its many imperfections. We can not assent to the rulings in McGinnity v. White, 3 Dill. 350; Johnson v. Morrell, 1 Woolw. C. C. 390, and Jackson v. Mut. Life Ins. Co., 3 Woods, 413. We think the. principle sanctioned in those cases might, and probably would, lead to great abuses; and we find no authority in the statutes to justify it. The rule is, and it is certainly a sound one, that the question of jurisdiction vel non depends on the status of the parties and the subject-matter at the time the suit is instituted. Hence, if suit be instituted in a Federal court, between citizens of different States, it does not oust the jurisdiction, if, by change of domicile,’ they subsequently become citizens of the same State. In Dunn v. Clarke, 8 Pet. 1, the Supreme Court of the United States said ; “ Of the action at law, the Circuit Court had jurisdiction ; and no change in the residence or condition of the parties can take away a jurisdiction which has'once attached.” This was said in maintenance of the jurisdiction of the Circuit Court of the United States. Can the rule be different as to a State court? Can that logic be sound, which asserts that change of domicile, after action brought, can not oust the jurisdiction of a Federal court, but may give it jurisdiction where it had none before? To the same effect are the cases of Clarke v. Matherson, 12 Pet. 164; Green v. Custard, 23 How. 484. The following cases, we think, maintain the true doctrine, that when both parties are resident citizens of the same State at the time the action is brought, neither of them can acquire the right of removal bj changing his domicile: Tapley v. Martin, 116 Mass. 275; Holden v. Put. Fire Ins. Co., 46 N. Y. 1; People v. Superior Court, 34 Ill. 356; Sewing Machine Co. v. Smith, 71 Ill. 204; Ins. Co. v. Pechner, 95 U. S. 183; Gold-washing & W. Co. v. Keyes, 96 U. S. 199.

4. There is a second grave defect in the petition for removal, in this: that it was not presented to the Circuit Court until there had been three continuances of the cause, and no excuse is offered for the delay.—Bible Society v. Grove, 101 U. S. 610; Ins. Co. v. Precker, supra; Savings Bank v Benton, 2 Metc. Ky. 240.

5. A third possible defect consists in tbe failure to show that the affidavit of local prejudice was made before an officer of the law authorized to administer an oath. We can not know judicially that the person certifying the affidavit is the officer be represents himself to be, or that be has authority to administer an oath.

We are convinced the defendant showed no good ground for a continuance ; but the power of the Circuit Court being discretionary, this court can not enter into the inquiry, whether be exercised it for a sufficient or insufficient reason. That would be to review his decision.

Mandamus denied.