. 41fDERSON , BOWERS. .,. .
121
ANDERSON
et al. v.
BOWERS
et al.
(Circuit. Court, N. D. REMOVAL OJ!' CAUSES-LoCAL PREJUDICE.
W. D. August 29, 1890.)
Under Act Congo Aug. 13, 1888, amending Act March 3, 1887, § 2, 01. 4, providing that in actions "in .which there is a controversy between a citizen of the state in which the suit is brought and a citizen of another state, any defendant, being such citizen of another state, n may remove the action on the ground of local prejudice the right of removal does not exist where the controversy is between a citizan of the state wherein t,he SUIt is pending onthe one side, and a citizen of the same state and a citizen of another state on the other side.
Motion to Remand to State Court. Van Wagenen & McMillan and Kauffman & Guernsey, for complainants. Hender8on, Daniel8, Httrd & Keisel, for Orient Fire Insurance Company. SHIRAS,J. The motion to remand in this case presents the question whether, under the local prejudice clause of the act of congress of 1888,1 the right of removal is confined to cases wherein all the defendants are citizens of a state other than that in which the suit is pending. The complainants in the cause are citizens of Iowa. The Orient Fire Insurance Company, a corporation created under the la.ws of the state of Connecticut, and George Provost, are defendants, the latter being a citizen of Iowa. The insurance company filed its petition for a·removalof the case on the ground of local prejudice, and the petition wasgranted,following the ruling made by Judge JACKSON in Whelan v. Railroad Co., 35 Fed. Rep. 863. The motion to remand was filed for the purpose of re-presenting the question of the true construction of the statute in this particular. The original local prejudice act of 1867 provided "that where a suit is now pending, or may be hereafter brought, in any state court,.in which there is a controversy between a citizen of the state in which the suit is brought and· a citizen of another state, whether he be plaintiffor defendant, if he will file an affidavit," etc. The clause deals with two subjects: (1) It defines the class of controversies that are removable under its provisions; (2) it declares by whom the right of removal may be exercised. To, be removable,there must be iIi the suit a controversy between a citizen of the state whereiuthe suit is brought and a citizen of another state. Such a controversy existing, then, upon the showing of the existence of local influeoce or prejudice, the citizen of another state, whether plaintiff or defendant, could remove the case. In cases wherein there was more than one plaintiff or defendant, it was held by the supreme court that all interested in one side of the controversy must be citizens of the state in which the suit was brought, and all interested adversely must be citizens of other states, and furthermore that all the citizens of the state or states, other than that in which the suit was pending, must unite in the application for removal. Sewing-Mach. Ca8e, 18 Wall. 553 j 1
Act of August 18, 1888, amending act of Maroh 8, 1887, S 2, cL "
v.43F.l1o.5-21
The same construction was applied, the local prejud:keclause was carried into the Revised Statutes, bebecoming subsection 3 of section 639 thereof. Society v. Price, 110 U. S. 61, 3 Sup. Ct. Rep.4'40j Hancock v. Holbrook, 119 U. S. 586, 7 Sup. Ct. Rep. 341. In other words, the class of cases to which the local prejudice clause was applicllble under the act of186t and section 639 of the Revised Statutes was that wherein one side of the controversy was represented by acitizell.or citizens of the state wherein the suit was pendother by a: citizen or citizens of other states. The clause ing, and did not include cases 'wherein the controversy was partly between citizens of the same state. This was the settled construction of the language used in the act of 1867 and the Revised Statutes, and therefore, when congress enacted the statute of,1888, andui;led therein the same definition of the class of ,cases, removable on the grounds of local influence or prejudice, is there any escape from the conclusion that it was the intent of congress. that iAe sam,e construction should be applied thereto? It is well settled that the termsu13ed in a statute have acquired a. meaning, througlI judicial; interpretation, and the same terms are used in a subsequeQtstatute\lpon the Sll-me subject, the presumption is that. it was the that the same interpretation should be given intent· thereto,unles$ :by qualifying or expill-natory additions is mad.e:tollppear. The 4bbotsjord, 98 U. S. 440j Claflin v. Insurance Co., 110 Ct. Rep. 507. Are such qualifying words to. be found il;l of 1888? In describing the class of suits removable on the grounds, of prejudice or local influence, the language is identical' with that fO,wfd in the act of 1867. Both acts define the class to be a (lontroversy between a citizen of the state in which the suit if! brought and a. citizen of another state." When, howeoVer, we reach the part of the clause. which declares who may exercise tpe rigl;1,t of removal, we find a wide divergence between the two acts. Undertl;J,e ,act '00867, the right was conferred upon the citizen or citizens of the state ors,tatesother than that in which the suit was pending, raposition as plaintiff or defendant. Under the act of 1888 thap)a.jntiWcannohemove a cause, but any defendant, who is a citiZ!'Jn of utate other than that in which the suit is pending, may remove, tpe (same ,l;1pon a proper showing. It isurgerl in argument that the 'use ofJhewQl,'ds':any defendant, being'l!uch citizen of another state,may impliesthll-t there may be defendants who are not citizens state, and yet the cause may beremoved,if there iss defendof is 'a of another state. .It cannot be gainsaid that the w,qrds aresqsceptible of this .construction , and if the.olass of cases rathis clauS!El hlld not been previously defined and limited, Iilight would be permissible. In view, ' h,oweveJ.;, ,o{Jhe:settJed construction given to the preceding portion of the clauSEl, possible implieation should be held to show tllat it. the mea,ningQf the terms previously used. ' It seems to me to be the true rule to give the words, "in which there is a controversy between a ,citizen of the: state in which the!' suit is brought
Vannevar v. Bryant, 21 Wall. 41.
!and a eltiienof
state," the in the' act of1888,aS was given them in' construing the act of 1867, thus holding that the class of Cases removable on the ground of prejudice and local influence is confined to those in which there is a controversy between a citizen or citizens of the state in which the suit is pending, and a citizen or citizens of at:.other or other states, but not includingeuch in which there is a controversy partly betVveen a citizen or citizens of the state wherein the suit is pending, and a. or citizens of other states, and partly between -citizens of the same state. Admitting that there is doubt as to the proper construction of the act, it still follows that this court should not retain the case, as it is better to leave the cause in the court whose jurisdi':tioll is undoubted. The motion to remand is sustained. . .
PORTER LAND
&
WATER
Co.
BASKIN.
(Circuit Court, S. D. CaliffYl'rl,ia. August 8,1890.) !
WRITST""SERvtOB BY PUBLIOATION.
.
III a suit to establish a trust in real estate, service may be had on a non-resident. though the bill also prays for an accounting aud for other relief.
In Equity. On motion to dismiss. GraveB, O'Melvrmy &: Shankland, for complainant. Anderson, Fitzgerald &: Anderson, for defendant. · Ross, J. This action was commenced in one ofthe superior courts of thA state on the 7th of February, 18R9. Among other things, the complaint alleges, in substance, that during the times therein mentioned the plaintiff was and still is a corporation duly organized and existing under the laws of the state of California, for the purpose, among other purposes, of buying, selling, and otherwise disposing of lands,waters, and water-rights; and that from the time of its organization until May 2, 1888, the defendant was one of its directors. That on the 29th of J,me, 1887, defendant, while such director, entered into a contract with plaintiff by which defendant was constituted sole agent of the corporation pla:intiff for the selling of its lands, with his compensation fixed at $100 per month, and 6 per cent. commissions on all sales, which compensation, the complaint alleges, "was an exorbitant, unjust, and unconscionable sum." It alleges that many sales of the lands of the corporation made under the agreement mentionM were made upon credit, without any paynlent being made to the corporation; that many sales were never completed, from which no consideration was realized by 'it', and were afterwards canceled or "treated as null and void," yet on all these transactions defendant charged against the corporation, and was allowed, commissions to the maximum extent provided for by the contract under which,he acted. "That, in the capaeity of agent, as aforesaid,'and dis-