Rome & Carrollton Construction Co. v. Smith , 84 Ga. 238 ( 1890 )

Blandford, Justice.

In each of these cases a petition for removal from the State court to the United States circuit court upon ground of local influence and prejudice, supported by affidavit with bond, was filed in the superior court where the actions by the defendants in error against the plaintifls in error were pending, and this at the trial term. The petitions for removal were not accepted by the court, and amendments were allowed in each case, striking from the case the Rome and Carrollton Construction Company, one of the defendants, which was alleged to be a foreign corporation not resident in this State, and each case was discontinued as to said defendant ; and the court thereupon proceeded to the trial of the cases as against the Chattanooga, Rome and Columbus Railroad Company. This action on the part of the court was excepted to ; and it is insisted before us that such action was illegal, because, by virtue of the fact that the petition and bond for removal had been filed in that court, the' court had no jurisdiction to proceed with the trial or to render judgment allowing the amendments and the discontinuance of the cases as to the Rome and Carrollton Construction Company. So the question before us is whether, under the act of Congress approved March 3d, 1887 (Statutes of U. S., 1886-7, chap. 373, p. 552), a case,can be removed by a non-resident defendant from the State court into the circuit court of the United States by merely filing a petition alleging that “from prejudice or local influence he will not be able to obtain justice in such State court, or in any other State court to which the said defendant may under the laws of the State have the right on account of such prejudice or local influence to remove said cause.”

The first section of this act of Congress confers jurisdiction upon the circuit court of the United States, and provides “that the circuit courts of the United States shall have original cognizance, concurrent with the courts of the several States, of all suits of a civil nature, at common law or in equity, where the matter in dispute exceeds, exclusive of interest and costs, the sum or value of $2,000, and arising under the constitution or laws of the United States, or treaties made or which shall be made under their authority, or in which controversy the United States are plaintiffs or petitioners, or in which there shall be a controversy between citizens of different States, or a controversy between citizens of the same State claiming lands under grants of different States, or a controversy between citizens of a State and foreign States, citizens or subjects, in which the matter in dispute exceeds, exclusive of interest and costs, the sum or value aforesaid.” The second section of the act provides for removal of causes into the United States circuit court, and is to the effect that “any suit of a civil nature, at law or in equity, arising under the constitution or laws of the United States, or treaties made or which shall be made under their authority, of which the circuit courts of the United States are given original jurisdiction by the preceding section, which may now be pending or which may hereafter be brought in any State court, may be removed by the defendant or defendants therein to the circuit court of the United States for the proper district, by the defendant or defendants therein being non-residents of that State; 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 defendants actually interested in such controversy may remove said suit into the circuit court of the United States for the proper district, at any time before the trial thereof, when it shall be made to appear to said circuit court that from prejudice or local influence he will not be able to obtain justice in such State court, or in any other State court to which the said defendant may, under the laws of the State, have the right, on account of such prejudice or local influence, to remove said cause.” The third section of the act provides that “whenever any party entitled to remove any suit mentioned in the next preceding section, except in such cases as are provided for in the last clause of said section, may desire to remove such suit from a State court to the circuit court of the United States, he may make and file a petition in such suit in such State court at the time, or any time before the defendant is required by the laws of the State or the rule of the State court in which such suit is brought to answer or plead to the declaration or complaint of the plaintiff, for the removal of such suit into the circuit court to be held in the . district where such suit is pending, and shall make and file therewith a bond, with good and sufficient security, for his or their entering in such circuit court on the first day of its then next session, a copy of the record in such suit, and for paying all costs that may he awarded by the said circuit court if said court shall hold that, such suit was wrongfully or improperly removed thereto, and also for their appearing and entering special bail in such suit if special bail was originally requisite therein. It shall then be the duty of the State court to accept said petition and bond, and proceed no further in such suit, and the said copy being entered as aforesaid in said circuit court of the United States, the cause shall then proceed in the same manner as if it had been originally commenced in the said circuit court.”

We think it is clear, under this act of Congress, that where the removal is sought upon the ground of prejudice or local influence, the application for removal should be made to the circuit court of the United States, and not to the State court; because, by the third section of the act, it is provided that cases under the first clause of the second section may be removed upon petition and bond filed in the State court; and cases falling within the second clause of the second section, which is that clause which refers to prejudice and local influence, are excepted specially from the provisions of the third section, which provides for the removal by petition and bond in the State court. Indeed, it appears from this section of the act that, before the removal can be effected, it shall be made to appear to the circuit court that from prejudice or local influence the petitioner will not be able to obtain justice in the State court. It seems to us from reading this act, that the application should be in the first instance made to the circuit court; and if upon the hearing of the same by the circuit court that court shall be of the opinion that the applicant cannot receive justice on account of prejudice or local influence, that court should direct the removal of the cause from the State court into the circuit court of the United States. And to this eftect was the opinion of Brewer, J., in the case of Short v. Chicago, M. & St. P. Ry., 33 Fed. Rep. 114, in wdiich he holds: “ Before a removal can be had on the ground of prejudice or local influence, there must be shown to the circuit court of the United States the existence of such prejudice or local influencé. . . . There is a question of fact which the circuit court must determine, and it cannot order the removal until it appears that such prejudice or local influence exists.” The same learned judge, in 34 Federal Reporter, 225, in a case between the same parties, reiterates what was stated by him in the case already cited. It is stated by Judge Speer,.of the Southern District of Georgia, in a book published by him on the Removal of Causes from the State to Federal Courts, p. 64, that the application is made to the circuit court, and “that court is in a position to determine in the first instance whether the cause is properly removable; and when it has so determined, it has the power to obtain a transcript of the record of the State court by certiorari, or custody of the person held under the State process, by habeas corpus cum causa, or by other appropriate writ.”

We think that in these cases the mere filing in the State court of the petition for removal and the bond, was not of itself a removal from that court to the circuit court of the United States, and that the State court did not lose jurisdiction; and we think, therefore, that the court had the right to allow the plaintiffs to amend their declarations and discontinue the cases as to the Rome and Carrollton Construction Company, and to retain jurisdiction of the same. Jurisdiction of a case commenced in the courts of this State and pending therein remains in the State courts until the circuit courts of the United States acquire jurisdiction of such cases according to law; and when the United States courts acquire such jurisdiction, the jurisdiction of the State courts ceases, and not until then, and they may lawfully proceed with such cause. Judgment affirmed.