HONEV. DILLON.
SCIlNADIG 'V. FLESCHER.
«(Jircuit Oourt,1J.Oolorado. Rm:lol:OVAI. OJ' CAUSE-REV.
ST. § 639, SUED. 8--DIVER8ITY OF CITIZENSHIP. "IUs a condition requisite to removal ,under Rev. St. U. S., § 639, subd. 3, $at'the diversity of cItizenship must exist. both when the suit was begun and when the petition for removal is filed. Gib80n V. BruC8,2 Sup. Ct. Rep. 878· . 8. C.l08 U. S. 5(i1, followed.
QP,"Motion to Remand case to state court. mUon, for plaintiff. Geo'.''r.)iUen, for defi311dallt. :6R'EWElt; J; The motiontp remand is sustained on the authority of Gibhdnv.Bruce, 108 U. S; 56t, S. C. 2 Sup.,Ct.:Rep; 873, and Freling-
huyseJn v.Baldwin, 19 Fed'. Rep. 49. The first case is an authoritative declaration that, under the removal act of 1875, the requisite citizenship mmte:&ist, both at the time of commencing the suit and also at the time offiJing the petition forrenioval. The language oithe act of 1867 is with that oithe act of 1875, but the difference is not such ast()indioote a different intent on the part of eongress. See the opiniou of Oirc\iit Judge WALLACE in the second case.
(OiJrcuit Oourl. 8. 1J. Georgia, E. 1J. NO'\"ember 80,1886.)
1.
RmJlOVAL OF CAUSES-CITIZENSHIP.,...AcT OF CONGRESS OF MARCH
3, 1875. Ullder the act of Ma!'ch 3, 1875, a suit cannot be removed from a state court unless the requisite citizenship of the parties existed both when the suit was begUl1and when the petition for removal was filed. SAJlJl:-ACT OF CONGRESS OF MARCH 2, 1867. Under the act of March 2, 1867, it is not necessary that the parties should have been citizens of different states at the time when the suit was brought. if they are citizens of different states when the petition for removal is filed. SAME-FINAL HEARING-DEM.URRER OVERRULED-STATE EQUITY RULES.
8.
4.
Wbere the rules of procedure in equity of a stltte provide that a demurrer ; shall be disposed of at the fitst term, and the second shall be tlle trial term, the hearing of a demurrer to a bill, and an order overruling it, is not such a finltl he,aring of the CRURe as will defeat a removal.
A bill of revivor is a mere continuation of the original suit, and, where the .Jurisdict!on of the COU1;t had completely to the controversy, it can· not be dIvested by the death of the non-resident defendant, and his executor has the right to defend the suit without regard to his own citizenship. (81111aJJu8 by the Oou'rt.) , , '
SAMJil-DEATH OF NON-RESIDENT DEFENDANT-BILL OF REVIVOR BY EXECUTOR.
In Equity. MotIOn to reDland. R. . ;Richards, for movant. (J'l,lera,rd !1nd . v.29F.no.11-30
.
FEDERAL .REPORTER.
SPEER, J. This bill was originally filed in the superior court of Ohatham county. It :was removed to this court by the proceeding under the act of March 2,1867, relating to local prejudice, on the fourteenth day of February, lS82.·Since that time various ordera have been taken in its progress here. ' An amendment has beeu filed .to the a demurrer to. the bill as amended; this demurrer has been o"errllled; ,an answe%' to bill as amended has been flIed; and the defendant having died, his death has been' suggested, and a to, %'ebill of %'evivo%' has been filed against his executo%'. A mand the cause to the state'court isuow made by tfle complainant, William Hone. It is insisted by the movant, himself' a citizen of Georgia, that at the time the suit was begun DavidR. Dillon was a citizen; ,of, the; same ,state;. the fact that he had beeome a citizen of the state of New York, and was a citizeu of the :latter s.tateat the time thecaus,e was removed to this court,thatDillon was . ' '.', , This question is n.ot' frOUl, It has been repeatedly held that a t; cannol be teIlloyedfrOUl a state court under the act citizenship of Marllh 3, 1875'llnless ,when the suit Wl:!JS begun, as BiS .when the a p plicati.on, fo%' removal . was made. Akers v. Ak,er8j,l11U" S. 197; S., C. 6 Sup. Ct. Bep. 669; Gibson v. Bruce, 108 U. S. 562; S. C. 2 Sup. Ct. Rep. 873. In the latter case Mr. Chief Justice WAITE, delivering the opinion of the court, considers section 12 of the judiciary act of 1789, and the act of 1875, he declares that the act of 1875. With it is "radically different from'ranywhich preceded it. Under that act, either party may petitiop{or,removI11, neither, party need be a citizen of the state in which the suit was brought. The materialJanguage is as follows: any suit of a civil natuTe,a.-tlaw Or in equity, now pending; Or W¢.r,e.ltfter brought, in any stat8 ,court. '. · · in which there shall 'be a controversy .between citizens of different states, · · · . either !partymay remOve, said suit into the circuit court of the United States for the proper district.'. In order to obtain the removal, a petition therefor must be filed in the state court at or before the term at which the cause could be first tried, ,and the trial. In the ,'pteljent case the petition was not filed until nearly two years after the commencement of the suit. The construction of the act is by no 'means free from doubt, but, on full consideration, we are of opiniOn thlit the requirements of the old law, that the necessary citizenship should exist when the suit wltsbrought, was not abolished. We cannot. believe it was itl.tendedto allow a party to deprive a state it once has rightfully acquired over him by changing his citizenship afters suit is begun; and that would be the effect of the law if the right of removal is made to depend only on the citizenship existing at the ,time a removal is applied for. But we are also of opinion that because of the extension of the time for ap.plying fofaremoval, and beoause neither' party . .
HONE V. DILLON.
467
need be a citizen of the state in which the suit is brought, and either party may apply, it was the intention to provide that the controversy should be between citizens of different states at the time of the reo moval. In this way the jurisdiction of the circuit court of the United States will only attach when there shall be a controversy between citizens of different states at the time the suit is transferred, and the right to the transfer will depend on the citizenship when thtl suit was and when the petition for removal is filed. We therefore hold that a suit cannot be removed from a state court under the act of 1875,. unless the requisite citizenship of the parties exist both when the suit was begun and when the pe'tition for removal is filed." It will be observed that in the foregoing decision the act of March 2, 1867, was not considered by the court. They decide the effect oUhe act ·of March 3, 1875. When reference is made by the chief justice to the old law, allusion I think is had to the act of 1789, which is mentioned in a preceding paragraph of the opinion. Had he referred to the act of.March 2,1867, the question would not be open. There' has been no decision by the supreme court of the United States upon the precise question in this case ;hut the supremecourt of Georgia in Hammondy. Buchanan, 68 Ga. 729, have held that itis'not essential thattb.e applicant should have been a non-resident of the state at the date of the commencement of the suit, to entitle him to remove a cause to the United States court on the ground of local prejudice, under the act of congress of 1867. This conclusion is entitled to great respect, and is supported by repeated decisions ofthefederalcoarts. When that case its.elf reached the circuit court of the United States 'for the Northern district of Geor. gia, a motion to remand was made before his honor Judge MCCAY; and, after very exhaustive argument, was overruled by that eminent jurist. The decision waBnot reported, but I was at that time a memo ber of the bar of that court, and heard the argument and the decis. ion. In Oook v. Whitney, 3 Woods, 715, it was held that to warrant a removal of, a cause from the state to the federal court, under the act of March 2, 1867, it is not. necessary that the parties should have been citizens of different states at the time when the suit was brought, provided they are citizens of different states when the petition for removal is filed; citing the opinion of Mr. Justice MILLER in John8on v. .MoneU, 1 Woolw. 31)0. The reason of the act would seem strongly support this conclusion. It became the law at a period of angry sectional feeling, and great prejudice in certain localities against citizens of other portions of the country. It might have been frequently true that one who had been a citizen of a state becaIhe involved in litigation, and, as a conse.. quence,found it desirable. and beneficial to change his domicile. Ii is not im.possible tha.t the law-making power had under contemplationexilesof this .enforced Unlike the; act of 1815, the
468
FEDERAL REPORTER.
act of 1867 did not ma.keit competent for a citizen of the state where a suit is brought to remove the cause; this is the privilege of the nonresidetlt plaintiff or defendant. A removable suit under the latter act is one "in which there is a controversy between a citizen of the state in which the suit is brought and a citizen of another state." Can it be supposed that it was intended by congress to deprive of the right to remove their causes to the national courts a large class of individ· uals who, at this unsettled period of the country's history, found it necessary, pending litigation in which they were interested, to remove to other states? 1 think not. Besides, the statute was remedial, and should therefore have liberal construction. ' It is said, however, that the final hearing had been begun,because a demurrer had been disposed of in the state court, and the cause there referred to a master. ,From an examination of the record, it appears that the demurrer was that it assigned defects in the statement of certain sums in the bill;, it was general, in that it declared that the complainallt"hath riot in and by his said bill stated such a case as doth or ought entitle him' to any such relief 8S is thereby sought," etc. The demurrer was overruled on both grounds by his honor Judge FLEMING, presiding in the state court. The act declares that the cause maybe removed if the petition of the party is filed at any time before the trial or final hearing. Is a demurrer to a bill in equity, and the decision overruling the same, under the equity procedure of Georgia, such a final hearing as that contemplated by the statute above quoted? ' "The trial term of all equity causes 'shall be the second term after service has' been perfected on all the parties. " Code Ga. § 4205; Cook v. Board of Commis8ioner8, 54-Ga. 166. "A defendant may either demur, plead, or answer in a-cause in equity, or may file two or all these defenses at once, without waiving the benefit of either. In all cases, demurrers, pleas, and answers' shall be disposed of in the order named, and all demurrers and pleas shall be filed and deter. mined attl,le first term," etc. - Code Ga. § 4191. In view of the statutes, clearly the hearing of a demurrer cannot be the final hearing. Insurance Co.v. Dunn, 19 Wall. 224, 225; Vannevar v. Bryant, 21 Wall. 41-43. Both of these cases arose under the act of March 2, 1867, and are clearly distinguishable from Alley \'. Nott, 111 U. S. 474, S. C. 4 Sup. Ct. Rep. 495, and Gregory v. Hartley, 113 U. S. 74:2, S. C. 5 Sup. ct. Rep. 743, which arose under the act: of 1875. But it is said that the present defendant is the executor of Dillon, and is himself a citizen of Georgia, apd for that reason the cause must be remanded. A sufficient reply:io this proposition is found in the decision of Clarke v.Mathewson,n12 Pet. 170. There, as in the oase under 'consideration, a bill of revivor had been· filed in continuation of the original suii; and thecoort held, Mr. JusticeSTMY delivering the opinion, that, if the plaintifl was competent to sue the
a
MAY
v.
COUNTY OF BUCHANAN.
469
defendant in the circuit court, his representative, though a citizen of. the same state, may revive it,-the court holding, against the argument of Daniel Webster, who was of counsel for the appellees, that the bill of revivor was in no just sense the original suit, but was a mere continuance of the original suit, and, where the jurisdiction of the court had completely attached to the controversy, it could not be divested by any subsequent events, and that the administrator or executor of a deceased party, under the thirty-first section of the judiciary act, (1 St. at Large, 90,) has power to prosecute or defend an action by or against the deceased, without regard to his own citizenship. It may be of consolation to counsel of movant here to reflect that JUdge STORY held with him in the circuit court, and not until ma.ture reflection did he change his opinion. For the reasons given the motion to remand is de1,lied.
MAY 11. BUCHANAN
Co.,
(Oi'1'CJ.f,ii (Jourt, No D. Iowa, E. D. November Term, 1886.) 1. COURTS-OF UNITED STATES-STATE STATUTE OF LIlIIITATIONS-PATENTSREV. ST. U. S. 721. .
Under Rev. st. U. S. § 721, prOViding that "the laws of the several states, except where the constitution, treaties, or statutes of the United States otherwise require or provide, shall be regarded as rules of decision in trials at common law, in the courts 'Of the United States, in cases where they apply," an action in a federal court to recover damages for infringement of a patent is not subject to a state statute of limitations.
2,
SAlIIE-CLAIlIl AGAINST COUNTy-STATE STATUTE,
But such action is subject to a state statute reqUiring a demand against a county for unliquidated damages to be presented to t)le board of supervisors of the county, and pay,ment demanded, before bringing action upon it.
Action for damages for infringement of a patent. -tition. Runneu's & Walker, for plaintiff. J. E. Cook, for defendant.
Demurrer to pe-
SHlRAS, J. In the petition filed in this cause, it is averred that on the fourth day of October, 1859, letters patent, in due form, were issued to one Edwin May for an. improvement in the construction of prison cells, and on the fourth day of October, 1873, an extension of said pat·ent for a further term of seven years was duly granted to said May; that in February, 1880, said Edwin May died, in the state of Indiana, and that plaintiff, by proper proceedings had in the probate court, and conveyances executed under the orders thereof. has become and is the owner ·of all the rights conferred by and growing out ofsaid letters patent to said ..Edwin May; that between the fourth day of October, 1873, and the same