Andrews' Ex'rs v. Garett ( 1875 )

SWING, District Judge.

The disposition of this motion involves the construction of the second and third sections of the act of congress, passed March 3, 1875, [18 Stat. 470,] providing, eta The second section of that act provides: “That, any suit of a civil nature, at law or in equity, now pending or hereafter brought in any state court where the matter in dispute exceeds, exclusive of costs, the sum or value of $500, and arising under the constitution or law of the-United States; * * * or, in which there shall be a controversy between citizens of different states, eta, either party may remove said suit into the circuit court of the United States for the proper district And when in any suit mentioned in this section there shall be a controversy which is wholly between citizens of different states, and which can be fully determined as between them, then either one or more of the plaintiffs as defendants actually interested in such controversy may remove said suit into the circuit court of the United States for the proper district.” The third section provides: “That whenever either party or any one or more of the plaintiffs or defendants entitled to remove any suit mentioned in the next preceding section, shall desire to remove such suit from a state court to the circuit court of the United States, he or they may make and file a petition in such suit in such state court before or at the term at which said ease could be tried, and before the trial thereof.” The' remaining part of the section refers to the bond and proceedings on removal.

It is not denied that the amount involved in this case, and the citizenship of the parties, were within the requirements of the second section. The amount was over $500. The controversy was between citizens of different states, and the suit was pending in a state court at the time of the passage of the act of congress, possessing every element to authorize its removal to the circuit court of the United States. The third section simply provided the time when and the mode in which the application shall be made for such removal, and the steps necessary to accomplish it. The mode is to be by petition to the state court, and the time is before or at the term at which said cause could be first tried, and before the trial thereof. The facts found by the learned judge of the state court show that the petition was properly filed, and all the necessary steps taken in accordance with the provisions of the third section, and that the petition was filed before or at the term at which said cause could be tried after the passage of said act of congress. And if the term referred to be the term aft-erthe passage of the act, there can be no controversy in the case. The jurisdiction must be admitted. That congress had the power to authorize the removal of the cause in its then condition cannot be doubted. Home Life Ins. Co. v. Dunn, 19 Wall. [86 U. S.] 214. Did they, by the terms aud the spirit of this statute, so authorize its removal? The language of the statute is, any suit now pending; in other words, all suits now pending of the requisites may be removed, and the length of time which the suit had been pending, or the condition it was in if no-final judgment had been rendered, could make no possible difference in the reason which operated upon congress to confer the jurisdiction, as- is clearly shown in the reasoning of the court in the case of Home Life Ins. Co. v. Dunn, [Id.] The term referred to is the term at which said cause — what cause? The cause referred to in the second section; to-wit: any cause pending at the passage of the act could be first tried after the passage of the act, and not the term, at which said cause could have been tried long before the passage of the act. The motion will, therefore, be overruled.