CAMPBELL II. COLLINS.
849
OAMPBELL
et al. v. 2,507.
COLLINS.
(Olrcult Court, D. Rhode Island. No.
August 3, 1894.)
REllOVAL OF CAUSES-LoCAL PREJUDICE-REMOVAL BY PLAINTIFFS.
The clause In the act of August 13, 1888 (section 2), relating to the remand of any suit "which is now pending in any circuit court, or may hereafter be entered therein," and which has been removed by the plaintiff on the ground of local prejudice, relates only to causes already removed Under the act of 1875, and does not, by implication, authorize further removals by plaintiffs on that ground. Fisk v. Henarle, 32 Fed. 417, approved.
This was an action in a state court by Campbell & :Macomber against John E. Collins. Petition for a removal of the cause to this court, on the ground of prejudice and local influence. James E. Denison, for petitioner. OARPENTER, District Judge. This is a petition brought by one of the plaintiffs in an action at law now pending in the appellate division of the supreme court of Rhode Island to remove the same into this court. The petition alleges that the plaintiff, at the beginning of the suit, were, and still are, citizens of the state of Maine, and that the defendant, at the beginning of the suit, was, and still is, a citizen of the state of Rhode Island, and further alleges that, from prejudice and local influence, the petitioner will not be able to obtain justice in the said state court, or in any other state court to which he may, under the laws of the state, have the right to remove said cause. On this petition a citation to show cause was issued and served. The defendant has made no appearance. This petition is filed on the theory that the words in the removal aot of August 13, 1888, "at any time before the trial of any suit which is now pending in any circuit court or may hereafter be entered therein, and which has been removed to said court from a state court on the affidavit of any party plaintiff that he had reason to believe," etc. (25 Stat. 435), amount to a grant by implication to the plaintiff in a cause to remove the same for prejudice or local influence in the same way in which it may be removed by the defendant under the provisions of the next preceding paragraph of the same act. This whole statute came under the consideration of Judge Deady in the circuit court for the district of Oregon in October, 1887, at which time the act of March 3, 1887, was in force (24 Stat. 552). In the language of the elapses here referred to, the act of :March 3, 1887, is identical with the act now in force. The construction of the clause here relied on was perhaps not specifically necessary to the determination of the question there pending, but to the determination of that question it was necessary to bring a comprehensive construction of the whole of the amendatory act of 1887; and the decision may therefore well be held to be an authority v.62F.no.l0-54
\",860
FEDElU.L REFORTERi'v.ol.
62.
on the question ·.' In that case was that the clause here relIed otflis ('ali independent temporary provision, intended to apply to:suits which had then been :removed" under a former act, and "has no application to a removal had under the act, and which did not take place before the passage of the same," under the act in force gave the right of removal T9. tlle plaintiff. Fiskv;lIenarie, 32. Fed. 417. Independently of the. weight of this construction, seems tome to be clearly correct The clause, in question otherwise would serve no pur· posE;', H. cannot be intenqed to give jurisdiction to e;amine into the grou:nds on which the allegations of the founded, for the reason that it would thus, by implication, restrict the power of the court to inquire into the grounds of the petition to cases in which the plaintiff: had removed the! c1wse. Such a construction, being a derogationof;the right to ·inquire into the substance of an allegation, should be adopted only.in case of absolute necessity. The interpretation of the words by Judge Deady shows that here is n. .. . f1Cli;ssity", T.h., p.ower .1.O in.qui.re ,into them,erits of the . ..... under the' act ,now in;force by virtue court, 9p,proper appJieation or plead· anil not curtaUe4, bY"the proviso that the cause in ,prope:1' as' to defendants, not: affected by local influence; rrhe:: RetltiQner cites .of aills· Y., .Raill'oad 00., 33 ,Fed. 81, in it..is said a\3 to }?laintiffs, the right. to remove ,as fo.rmerly. This case, howdeCIde but rather assumes that it therEmnder for pUl'poses of com· the prilctwe ill case of removal by a defendant.· The' petittob. be denied and dismissed. COLLINS v. CA?!,{P.BELL.
(Circuit Court:;· 'X>:, Rhode ,: No. 2,506.
August 3, 1894.) AJ·
REMOVAL · 0,. CAUSEB-LocAL PREJUDICE -' SUFFICIENCY 01' PETITtON AND ll'IDAVI'i.'. . . , "
ltlgndt Bufficient toinerely allege in tpe petition and, affidavit that petitiolier "has reason to 'believe, and does believe," that, from prejUdice and local influence, he will be unable to obtain justice in the state courts. The of pl'ejudilJeand local Intiuence must be alleged as matter of ShoJ1t. v. RailwIlYCo., 33 Fed; 114, followed.
This tasan'llction at law, brought in a state eourt by John E. Collins against Edward T.Campbell. Defend'aDt petitioned for a remoyml,C!>f·the cause to' thls court, on the ground of prejudice and local influeiice. ' Denison, petitioner. OARPENTER, 'Disb'lct· J:ndge. .This lsi,a petition by the defend· ant, in an a.ction at law now pending in' the common pleas division