US SUPREME COURT DECISIONS

A., a citizen of Florida, with other persons, some of whom were citizens of New York, was sued by a citizen of the latter state, in a court thereof. The plaintiff, in his petition, alleged that the defendants held all the franchises and property of a certain railroad company, and prayed that they be required to hold the income of the railroad in trust for the payment of a judgment theretofore rendered in his favor in that court against the company, and that they be directed to pay him the amount thereof, and for other relief. He averred that A. was endorser on part of the notes on which the judgment had been rendered. There was a judgment in favor of all the defendants, which the Court of Appeals affirmed, except as to A. The cause was remanded for a new trial as to him, solely on account of his alleged liability as such endorser. After the remittitur went down to the court of original jurisdiction, and before such new trial, A. filed his petition in due form, accompanied by the necessary bond for the removal of the suit as against him to the proper circuit court of the United states, under the Act of July 27, 1866, 14 Stat. 306. Held that the matter in dispute being sufficient, A. was entitled to a removal of the suit.

This was a suit commenced Feb. 16, 1868, in the supreme court of New York, by Francis Vose against the Florida Railroad Company, David L. Yulee, Edward N. Dickerson, Marshall O. Roberts, and Isaac K. Roberts. The prayer of the complaint was that Edward N. Dickerson, Marshall O. Roberts, and all other associates of Edward N. Dickerson, who, when discovered, should be made parties, might be required to pay a judgment which had been rendered in favor of Vose against the Florida Railroad Company in the supreme court of New York, on which there was due $136,534.63, and interest from Feb. 1, 1867; that Dickerson, Yulee, Marshall O. and Isaac K. Roberts, and their associates, who it was alleged held all the franchises chanrobles.com-red

Page 99 U. S. 540

and property of the company, might be required to hold the income of the railroad, in trust for the payment of the amount of the judgment; that certain securities alleged to be in the hands of Yulee might be also subjected to the payment of the debt, and for other relief. It further appeared from the averments in the complaint that Yulee was liable as endorser on part of the notes on which the judgment was rendered, and this allegation was not denied in his answer, but no judgment was specifically asked against him on that account.

On the trial of the cause, the complaint was dismissed as to all the defendants. This judgment was affirmed in all respects by the supreme court in general term; but in the Court of Appeals it was reversed as to Yulee, and the cause remanded for a new trial as to him, on account of his liability as endorser of the notes. As to all the other defendants and all other relief asked there was an affirmance.

On the 5th of June, 1873, after the mandate went down from the Court of Appeals, Yulee filed in the trial court his petition, accompanied by the necessary bond, for the removal of the suit as against him to the circuit court of the United states for the Southern District of New York, under the Act of July 27, 1866, 14 Stat. 306. That statute provides that if in any suit already commenced, or which might thereafter be commenced, in any state court against an alien, or by a citizen of the state in which the suit is brought against a citizen of another state, a citizen of the state in which the suit is brought is or shall be a defendant; and if the suit, so far as it relates to the alien defendant, or to the defendant who is the citizen of a state other than that in which the suit is brought, is one in which there can be a final determination of the controversy so far as it concerns him, without the presence of the other defendants as parties,

"then and in every such case the alien defendant, or the defendant who is a citizen of a state other than that in which the suit is brought, may, at any time before the trial or final hearing of the cause, file a petition for removal of the cause as against him into the next circuit court of the United states to be held in the district where the suit is pending, . . . and it shall thereupon be the duty of the state court . . . to proceed no further in the cause as against the defendant

Page 99 U. S. 541

so applying for its removal."

The petition for removal set forth, in sufficient form and with sufficient particularity, the citizenship of Vose in New York, and of Yulee in Florida, both then and at the time of the commencement of the suit, but it made no mention of the citizenship of the other defendants. In all other respects the petition met fully the requirements of the statute. The accompanying bond was also correct in form, and no objection was made to its sufficiency. Notice of an intention to make the application for the removal was served on the attorneys of Vose on the 17th of April, 1873. Accompanying the petition was an affidavit of Dickerson, under date of June 4, 1873, to the effect that he, Dickerson, and the defendants Roberts were citizens of the State of New York.

The cause came on for trial June 9, 1873, and a jury was sworn, when the counsel for Yulee called the attention of the court to the proceedings which had been taken for the removal, and moved to dismiss the complaint for want of jurisdiction. This motion was overruled, and the trial proceeded, resulting in a verdict, by order of the court, against Yulee for $168,589.30, on which judgment was rendered. Exception to the ruling of the court on the question of removal was duly taken. Upon this state of the record, the case was taken by proper proceedings to the Court of Appeals, where the judgment was affirmed, on the ground that the suit was not removable under the act of 1866 when the petition for removal was filed, because the defendant Yulee was then the only defendant. This ruling of the Court of Appeals is now assigned for error. chanrobles.com-red

Page 99 U. S. 544