TOD'II. CLEVELAND & Y. V. BY. CO.
145
court, so the defendant could not remove it. This atlldavit is not denied by the plaintiff or by his attorneys. Another :I1act is significant from the affidavits filed by the plain· tiff in this case: That, although advised by the contention of the defendants that there was no community of action between the report of the defendant Roloff to the company and its subsequent publication, none of the affiants on the part of the plaintiff state or show that the defendant Roloff was instrumental in making the alleged publication, or that he authorized the same to be published. As the publication is the gist of the libe), this foltate· ment was important under the issues joined on this motion. The failure Of the plaintiff to support this averment in his petition, after accepting the gauge of battle thrown down by the challenge of the defendant in the affidavits filed herein, by his own or any other affidavit, is little less than an admission of the truth of defendant's charge. If, as a matter of fact, the defendant Rilloff, in connection with other servants, agents, and of the defendant company, made the libelous publication which is the gravamen of this action, the plaintiff can make that fact appear on the trial of this cause in this court; and when he does so this court will discontinue the case here, and remand the same to thp state court on the ground that it was improvidently removed. The motion to remand is denied.
TOD v. CLEVELAND & Y. V. RY. CO. et at (Circuit Court of Appeals, Sixth Circuit. December 4, 1894.) No. 202.
1.
REMOVAL OF CAUSES--LoCAL PREJUDICE-AMOUNT IN CONTROVERSY.
The record presented upon an application for removal of a cause from a state to a United States court, on the ground of local prejudice, in order to authorize the latter court to assume jurisdiction, must show that the amount in controversy exceeds $2,000.
2.
SAME-WAIVER OF OBJECTIONS.
A plaintiff whose cause has been removed from a' state to a United States court, and who falls to prosecute a motion to remand, thereby waives all objections to the removal which he is competent to waive, includIng the objection that the showing of local prejudice was not sufficIent, in a case where the removal was on that ground. An entry In the record of the circuit court, upon an application for removal of a cause from a state court, on the ground of local prejudice, whIch is In form simply' a finding of the right to removal, without an order that the cause be removed, does not effect the removal of the cause. Whether, when suchan entry is brought to the attention of the state cOurt,.and it thereupon treats the cause as removed, and the followS It to the United States court, and proceeds therein without objection, the defect Is not thereby waived, quaere.
'8.
SAME-ORDER OF REMOVAL.
4.
SAME-WAIVER.
In Error to the Circuit Oourt of the United States for the Northern Distnct of Ohio. v.65F.no.2-10
FEDERAL REPORTER;
vol. 65.'-
This·was an action by HenryTod against the Cleveland & Mahon· & Ohio lng Valley Railway Company, the New York, Company, and the New York, Lake Erie & Western Rail· road Company, to recover possession of certain lands; The action was originally brought in a court of the state of Ohio. The New York, Lake Erie & Western Railroad Company took proceedings for its removal into the United States circuit court, in which court a v.erdict and judgment were rendered for the defendants. Plain· tiff brings error. The plaintiff in error brought suit in the court of common pleas for Mahon· ing cO\IDty, in the state of Ohio, to recover the possession of certain land in that county then in the possession of the defendants, who claimed ·as owners or lessees thereof. The defendant companies appeared and answered, admitting the incorporation of the several defendants, the first two alleging that the demll.Ilded premises were in the possession of the third, a1id the third alleging the possession to be in itself, and each denied all the other allegations of the petition. Subsequent to. the time when the ease could, upon other grounds, be removed into the circuit court of the United States, and on the 3d day of February, 1891, the defendant the New York, Lake Erie & West );tailroad Company presented its petition to the court below for the rern moval of the cause into that court, upon the ground that, by I'easonof prejudi<;e and local influence, it couId not justice in the state court. This petition was accompanied by an affidllvit designed to show the. existence of that ground, and a proper bond. From the record in the state court, and the petition for removal, it then appeared that the plaintiff . was a citizen of Ohio; that the first two named defendants were also citizens of that state; and that the petitioning defendant was a citizen of New York. Neither b)' the record in the state court, nor by the petition for removal, nor the affidavit accompanying it, was it shown what was the value of the matter in controversy in the suit. In the petition and affidavit it was alleged in direct terms "that, from prejUdice and from local influence, said New York, Lake Erie & Western Railroad Company will not be able to obtain justice in said court {)f comn;lOn pleas, or in any other state court to which it has aright under the laws of the state of Ohio, on account of such prejudice and local influence, to remove said cause." Upon the filing of the petition, the court below directed the following entry: "This day came on to be heard the petition of the defendant for an order for removal of thecase from the court of common pleas of Mahoning county, Ohio; and it appearing to the court that the defendant has filed in this court his petition, bond, and affidavit under the second section of the act of congress of March 3, 1887, entitled 'An nct to determine the jurisdiction of circuit courts of the United States, and to regulate the removal of causes from state courts, and for other purposes,' etc., from which it appears to the court that said affidavit is in compliance with the said second section of said act -of congress, and that said bond is sufficient and satisfactory, and tbat said defendant, by his petition, affidavit, and bond, has shown he is entitled to remove said cause to this court." The .transcript was filed on tbe same day. It appears, also, that a similar petition, with an affidavit and bond, bad previously, and on the 27th day of January, 1891, been filed in the state court, upQn which that court, on the 28th day of January, had made an order that the cause be removed into the United States court. After the transcript was tiled, the plaintiff entered a motion to remand, upon the .ground that the circuit court of the United States had not acqUired jurisdiction. This motion was not .brought on for hearing, and there is nothing to show that the attention of the court was ever called to it. Thereupon the plaintiff applied for and obtained leave to amend his petition, which was done liccordingly, and the defendants, by leave, filed amended answers. .The case went to trIal before a jury, and a verdict and judgment were entered for the plaintiff brings tbe case here, and assigns for matters involved in the rulings of the court upon tll,e trial. By leave of ·the court, counsel tor the plaintiff was permittep. to argue questions touching the jurisdiction of the court below, that is 'to say-'-First,
TOD V. CLEVELAND &. M. V."RY. ,CO.
147
whether it was competent for the one defendant; to remove the cause upon the ground alleged without joining the others in its petition; second, whether the fact of prejudice and local influence was sufficiently made to appear to justify an order of removal; third, whether it was necessary that it should be shown that the value of the matter in dispute was such as to constitute the case, in that respect, one within the jurisdiction of the court; and, fourth, whether the entry above set forth amounted to an order of removal.
GeorgeF. Arrel and H. K. Taylor, for plaintiff in error. Hine & Olarke, for defendant in error the New York, L. E. & W. R.Oo. Before TAFT, Circuit Judge, and SEVERENS and SWAN, Dis· trict Judges. Having stated the case as above, SEVERENS, District Judge, delivered the opinion of the court. of the rulings occurring Bef()re entering upon the on the trial upon which error is specially alleged, it is necessary to look into the questions submitted affec,ting the jurisdiction of the circuit court; for, unless it appears that that court acquired jurisdiction by the removal proceedings, it is clear that we cannot proceed to discuss the merits of the controversy. It is well known that, upon the first and second grounds above stated upon which the want of jurisdiction is alleged, there has been much difference of opinion in the subordinate courts; but, inasmuch as we are of opinion that the jurisdiction of the circuit court must be denied upon another ground, we do not deem it necessary to examine the questions whether one of several defendants can proceed for the removal of the cause for the special reason here alleged to exist, Where the other defendants are citizens of the same state with the plaintiff, and whether such a showing as was made in this case ill regard to prejudice and local influence is sufficient. It seems proper, however, to say that in the present case the question last referred to does not present itself in' the same way in which it would have done if the plaintiff had prosecuted his motion to reID3,nd. By omitting to do that, he waived all objections which he was competent to IIDd there remains not the question whether there was sufficient fulh;:less in the showing of prejudice and local influence in the petition and affidavit, but the question whether they constituted any evidence, at all of the fact stated. Mere defects in the form and mode of procedure may be waived, though ilie essentials of jurisdiction cannot ,be. Ayers v. Watson, 113 U. So 594,5 Sup.Ot. 641; Martin's Adm'r v. Railroad Co., 151 U. S. 673-687, 14 Sup. Ot. 533. Another question presented by the record is whether it was necessary, ill order to justify the removal, that it should have been shown to the circuit court that the value of the matter in controversy was such as to bring it within the jurisdiction of the court. We are of opinion ,that itwUlil, and that· the case must be remanded to the state court, for the J.:e!lson that it nowhere appeared from anything in;the record or, petition or affidavit that -the sum or value ,of thethin,g for, the sum of, $2,()OO. The fi,rst section