HILLS V. RICHMOND & D. R. CO.
81
HILLS
v.
RICHMOND
& D.
R. CO}
(Oircuit Oourt, N. D. Geo'l'gia. December 5, 1887.) REMOVAL OF CAUSE-LOCAL PREJUDICE-AFFIDAVIT,
Section 2 of the act of'March 3, 1887, (24 St. 553,) does not change the practice as it formerly existed, so far as concerns defendants seeking to remove from state to federal courts on the ground of prejudice or local influence. In respect offlaintiffs 80 seeking to remove, the act in express terms makes it the duty 0 the circuit court, on the application of'the other party, to examine into the truth of the affidavit, and the grounds therefor; but the absADce of any such prevision all'to defendants clearly indicates that the law in this respect was Dot intended to be changed as to them,
Action to Recover Damages. On motion to remand. N, J. T.A. Hammond, for plaintiff. . Barraw Tlwmas arid Henry Jackson, for defendant. NEWMAN, J. This case to this court by the defendant from the. Buperior court of Fulton county, under what is commonly known as the "Local Prejudice Act." The petition for removal, stating that. the defendant is a corporation organized under the laws of Virginia, a citizen resident of that state, and that the subject- . roa,tter of the suit exceeds. the sum or value of $2,000, states that from prejudice /,tnd local influence it will not be able to obtain justice in the superior court of Fulton county, or in any other court in the state to which it might, under the laws of said state, have aright, on account of prejudice or local influence, to remove the same. With the petition was filed the following affidavit: . "I, E. Berkley, being duly sworn,do say that I am the superintendent of that division of the Richmond &I Danville Railroad Company which extends from the city of Charlotte, in the state of North Carolina, to the city of Atlanta, in the state of Georgia; that I am specially intrusted by the said railroad company with the attentio11 to the defense of all cases brought against said company in the COUl'ts of the said state of Georgia, and in the courts of the UnitAd States which are held in said state; that I am specially intrusted by the said railro.ad with the taking of such steps for the protection of its interests and rights in such cases as may be brought agaiIiBt it in either of the coutts aforesaid, as my jUdgment may approve; that I am the highest officer in said company located in the state of Georgia, and having an office therein; that I have full authority to take such steps as may be necessary for the removal of causes brought in the state courts into the United States courts, where the facts authorize such removal, and my judgment is that the removal is necessary to the protection of property, interests, and rights of the company; that I have had long and large experience in the defense of cases brought against said railroad company in the courts of the state of Georgia, and in the superior court of the county of Fulton, in said state; that from that experience I now this. affidavit that I believe that from prejUdice and local influence the Richmolld & Danville Railroad Company will not be able to obtain justice in said state court, or in any other state coutt towhich the said railroad company ma)', under the laws ofthe said state of Georgia, have the right, on J
Reported by W. A. Wimbish, Esq., ot the Atlanta bar. v.33F.no.2-6
82
FEDERAL REPORTER.
account of such prejudice or local intluenc1e, to remove said cause. Deponent further deposes that the facts,IltQ,ted in the foregoing petition for removal by the said Richmond &; Dan ville Railroad Company are true." A bond was also filed, in'accordancEl'with the law. ,The order of the judge of the superior court was as follows: " ,','Uponconsidering the foregoing bond, and affidavit, it is ordered that the bond be acceptedaJ;ld,approved, and that this COUl:tproceed no fur'ther i'D'this case. It is further ordered that'the clerk of this 'court make out and of all processes, pleadings, a complete transcript ofWereeord of this depositions, testimony, a"d ;Qt,het proceedings therein ,had, ,and furnish the same t<> the petitioner, the nichmond, & Danville ,Railro8.d Company, or its counsel, in order that the same maybe filed in the circuit court of the United States for the Northern district of Georgia." The record was filed ill 'this court September 26,1887, and a motion is now made to remand the case to the state court.' 'The motion to re'mand is basea on the ground that under, the act of March 3, 1887, (24 St. at Large, 552,) it is now necessary, even as to a defendant seeking a Temoval, to make astrohger' case before this court' to justify retaining 'been neces$ary under the original act of jUrisdiction than would f1867,(Rev.St. U. 639;'subsec. 3.) In other words, that thelanguage it shaUbemadeto appear to said .circuit court that frompreju'dice or, localinfluenc,e llot be able to''obtaiiijustitJe "in such state <iourt,or in any other statecourt to which the said defendant may, under the laws, dfthe state; have a right, on accotl,nt' of such prejudice or local influence, said case," (A:ct MarcIl '3, 1887, § 2,) Wl\S intended to tiliange the laW' andpracticejaB' it r,emoval 'by affidavit of the 'party; 'Before the passage of'the last-named act, 'the law in terms autho!ized the removal upon the affidavit of either party has to, that from'prej-qdice or Ioqali;hfluence,:hew':ill npt be!1l;>le to 09talQ jUstice 'in, said\ltate 2 i of the act of,March 3, 18,87, as to court.'" The: latt!3fpart of removals by ,plaintiffs account of prejudice ,or local jnfluence, is in the following language: ' ' before the'trlW6t any whicl{t{n,dW pending in 'any cir<luit coilrt, or mar her'eafter'Jje"entered il;nd which hlLs been, removed tp $aid court' fr9Pl a statecpurt the affidavit that he had reasonto biM'eve,alld didWlieve. that from PNjulHce ;he unableto obtaIn justice in, said state courts'h'all, on of party; into the trl1th, bf'tbe' affidavit. and the ¥.rounds therepfi' and" un1e&s itshall'appl'ar totlielatisfaction' of the said 'chiIrt that MWIlar,tr will to obtain in, such state court, it shall cause temaI1q.ed thereto." ',;;: This in terms makes it the duty of theeou1!t,ointhe case ofa removal "bya plaintiff; ,on "the application hf .the other'party' toexltmine into the 81ldthe grQunds But no ,such proJoa 'flJ,Serei;noveQ, by a defcllHa:J;it. Is clear.from ,this that it.w:&.'3 to, establish a, djfferent rule as to removing cuses to this court from that of plaintiffs. And the reason for a different rule is apparent: The plaintiff, in a in
on