# Yulee v. Vose

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United States Supreme Court
99 U.S. 539
Yulee v. Vose
ERROR to the Court of Appeals of the State of New York.
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 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 indorser 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 indorser 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 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.
Mr. Edward N. Dickerson and Mr. William M. Merrick for the plaintiff in error.
All the essential facts which entitled Yulee to a removal being presented by the petition, and the requisite bond filed, there was no jurisdiction in the State court to try and determine the suit. That jurisdiction was absolutely ousted by the petition, and any further action there was coram non judice. The petition is ipso facto a removal of that cause. Any dispute as to the truth of its averments must be tried not in the State court, but in the Circuit Court of the United States, on a motion to remand the cause or otherwise, as that court may direct. If this were not the law, the right of removal might be defeated by the State court, upon its alleged disbelief of the facts proved by the petitioner, or its misconstruction of the statute. Bell v. Dix, 49 N. Y. 236. See also Fisk v. Union Pacific Railroad Co., 6 Blatchf. 362; s. c. 8 id. 243; Hatch v. Chicago, Rock Island, & Pacific Railroad Co., 6 id. 105; Dennistoun v. Draper, 5 id. 336; Insurance Company v. Pechner, 95 U.S. 183; Gold Washing and Mining Company v. Keyes, 96 id. 202; Railway Company v. Ramsey, 22 Wall. 326.
By the terms of the act of July 27, 1866, the right of removal attached to the plaintiff in error at the commencement of the suit, and ran throughout its existence. It was, therefore, not within the power of that court, by its judgment, to make a several case against him, so as to deprive him of a right which exists only where the case assumes a form in which it is capable of a final determination, 'so far as it concerns him, without the presence of the other defendants as parties to the cause.' It appears, therefore, to be within the very spirit, if not the letter, of the statute for a defendant to wait until, by the judgment of the court or by the alterations of the record, a case is presented which dispenses with the presence of the other defendants. In that light the act of severance performed by the judgment of the court below should have been regarded as removing the only impediment to a change of tribunals, instead of being erected into a bar to such change.
Where the right of removal once attaches, a subsequent event, or an amendment of the pleadings, or a change of the parties cannot divest it. Clark v. Mathewson, 12 Pet. 164; Morgon v. Morgon, 2 Wheat. 290; Kanouse v. Martin, 15 How. 198.
Mr. Philip Phillips for the defendant in error.
It is claimed by the plaintiff in error that if the petition for removal, on its face, be in accordance with the statutory requirement, it is a complete bar to all further proceedings in the State court, and that whether the facts stated in the petition are true or not in the record or dehors the record cannot be determined by that court.
Under the twelfth section of the Judiciary Act of 1789 it must appear to the satisfaction of the State court that the defendant is an alien, or a citizen of some other State than that in which the suit is brought, and that the matter in controversy exclusive of costs exceeds the sum of $500. Gordon v. Longest, 16 Pet. 97. It must also determine the sufficiency of the bond.
The act of July 27, 1866, differs only from that of 1789 in providing for the case where there are several defendants of different States.
In view of that decision, it necessarily follows that, under the act of 1866, it must appear to the satisfaction of the court that the petitioner is one of several defendants, and within the description of the act.
The principle contended for by the plaintiff in error is, that the statement in his petition that he is one of several defendants and that his cause can be determined without the presence of the others binds the State court, although the record of the case in which the petition is filed shows that he is the sole defendant.
In Sewing-Machine Companies (18 Wall. 553), the State court refused the application, under the act of March 2, 1867 (14 Stat. 558), made by two of the non-resident defendants, there being another defendant who was a citizen of the same State as the plaintiff. The form of the application was in all things regular; but that court held that the parties were not legally entitled, and on writ of error this court affirmed the judgment. The same question was again made in the Superior Court of Massachusetts; the same ruling was there made, and the judgment was affirmed in Vannevar v. Bryant, 21 Wall. 41.
It is therefore well established that the State court had authority to determine whether, in the case as made by Yulee, he was entitled to the removal of the cause.
The suit in its original constitution being incapable of removal, the plaintiff in error made no attempt to remove it until the question of the joint liability of all the defendants had been eliminated from it by the court of final appeal as to all the defendants except him, against whom only the judgment of the subordinate court was reversed, and a new trial ordered. Thus the suit had utterly ceased to exist as to all the other defendants. Nothing remained of it except an action in favor of Vose against Yulee on a special averment in the complaint of a particular liability against him, distinct from the equitable liability charged against them all jointly. The judgment of the tribunal of last resort put the other defendants out of court, or determined that the suit as to them no longer existed.
The act of 1866 provides only for a case where there are other defendants of the same State with the plaintiff. Yulee's case was not, therefore, within its provisions, and the court of original jurisdiction rightfully proceeded with the trial.
MR. CHIEF JUSTICE WAITE, after stating the case, delivered the opinion of the court.

## Notes

This work is in the public domain in the United States because it is a work of the United States federal government (see 17 U.S.C. 105).
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