# Fisk v. Henarie

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## Dissenting Opinion

    Harlan
United States Supreme Court
142 U.S. 459
Fisk v. Henarie
The facts of the case fully appear in the following statement by Mr. Chief Justice FULLER:
This action was commenced in the circuit court of the state of Oregon for the county of Wasco, on November 13, 1883, by James H. Fisk against Daniel V. B. Henarie, Eleanor Martin. Peter Donahue, Thomas S. Martin, Edward Martin, and John D. Wilcox, to recover a commission of 10 per cent., amounting to $60,000, on an alleged sale of a tract of land known as 'The Dalles Military Road Grant,' containing about 600,000 acres, situated in the counties of Wasco, Grant, and Baker. The first three of the defendants were residents and citizens of California, and the latter three of Oregon. Service of summons was had on the citizens of Oregon, and they appeared and answered. On February 2, 1884, publication of the summons was ordered as to the California defendants, who appeared and answered August 21, 1884. The answers of the defendants controverted the allegations on which the plaintiff based his demand, and contested his right to recover anything from them, or either of them, on any sale of the lands. On September 1, 1884, plaintiff replied to the answers, and on the 16th of the same month, on motion of the defendants, the venue was changed to Multnomah county, where the plaintiff and the Oregon defendants resided when the action was commenced, none of the parties residing in Wasco county. The case was afterwards tried before a jury in the circuit court for Multnomah county, who, on April 15, 1885, found a verdict under the direction of the court for the defendants, on which there was a judgment for costs in their favor; which judgment was on January 11, 1886, reversed by the supreme court, (13 Or. 156, 9 Pac. Rep. 322,) and a new trial ordered, which, being had, resulted, May 21, 1886, in a verdict for the plaintiff for the sum of $60,000. On the 18th of May, before the jury was impaneled, the death of Peter Donahue was suggested, and his executors, James M. Donahue, Annie Donahue, and Mary Ellen Von Schroeder, citizens of California, were substituted as defendants. The case was afterwards heard on the motion of plaintiff for judgment, and two motions of the defendants for a new trial, and for a judgment notwithstanding the verdict. On June 30, 1886, plaintiff's motion was denied, and defendants' for judgment non obstante allowed, on the ground that the complaint did not state facts sufficient to constitute a cause of action; and thereupon judgment was entered for costs in favor of the defendants, which judgment was on October 20, 1886, on writ of error, reversed by the supreme court, (14 Or. 29, 13 Pac. Rep. 193,) and the cause remanded for further proceedings according to law. On December 18, 1886, the circuit court allowed the motion for a new trial, and set aside the verdict, from which order the plaintiff appealed to the supreme court, and the appeal was on April 18, 1887, dismissed. 15 Or. 89, 13 Pac. Rep. 760. Thereafterwards the cause was again tried, and the jury, being unable to agree, were discharged without finding a verdict. July 30, 1887, the defendants Henarie, Eleanor Martin, and the executors of Peter Donahue, deceased, applied to the state court for the removal of the cause to the circuit court of the United States for the district of Oregon, and on the 1st day of August, 1887, an order removing was entered by the judge of the state court.
The petition for removal was filed on behalf of those defendants who were citizens of California in the state circuit court, and addressed to the judge thereof, and set up the citizenship of the petitioners; that at the time the action was commenced and the petition was filed there was a controversy therein between the plaintiff and the petitioners; the amount involved; the alleged cause of action; the issue thereon; and proceeded thus: 'That said action has not been tried and is now pending in the above-entitled court; that from prejudice and local influence your petitioners will not be able to obtain justice in this court or in any other state court to which the said defendants may, under the laws of this state, remove said cause; that the other defendants in said action, Thos. S. Martin, Edward Martin, and John D. Wilcox, now and at all times since the commencement of said action have been citizens and residents of the state of Oregon, residing in Portland, therein; that your petitioners desire to remove said cause to the circuit court of the United States for the district of Oregon under the provisions of the act of congress approved March 3, 1887. Your petitioners further say that they have filed the affidavit required by the statute in such cases, and they herewith offer their bond, with surety, in the penal sum of one thousand dollars, conditioned as by the statutes of the United States required. Your petitioners, therefore, pray that said bond may be accepted and approved, and that said cause may be removed into the next circuit court of the United States for the district of Oregon, and that no further proceedings may be had therein in this court.' Henarie, one of the petitioners, verified the petition upon belief; and it was accompanied by the affidavit of Henarie and Eleanor Martin to the effect that they had reason to believe, and did believe, and so stated, that, from prejudice and local influence, the defendants, to-wit, the affiants and the executors of Peter Donahue, would not be able to obtain justice in said state court or in any other state court to which said defendants, under the laws of the state of Oregon, had the right to remove the same, on account of such prejudice and local influence. The state court ordered the removal under the act of congress of March 3, 1887.
The transcript was filed in the circuit court of the United States, September 30, 1887, and on October 8th following a motion was made to remand upon the grounds that the application for the removal of the cause was not made in time, or before trial of the cause in the state court; that the petition and affidavit were insufficient, in that they did not set forth the facts and reasons showing the alleged prejudice or local influence; that the removal papers were not served on the plaintiff in accordance with the rules of practice in the state courts; and that the petition and accompanying papers did not show a cause for removal; and the motion concluded with a denial of the existence of any prejudice or local influence which would prevent the defendants, or any of them, from obtaining justice in the state courts or at all; and asked the court to examine into the truth of the affidavits alleging prejudice and local influence, and the grounds thereof, and thereupon to direct the action to be remanded to the court from whence it was removed. This motion referred to the record and certain affidavits filed in its support. The motion was denied by the circuit court, October 26, 1887, (the opinion will be found reported in 32 Fed. Rep. 417;) and on December 17th the cause was tried by a jury, and a verdict rendered for the defendants. Judgment was thereupon entered against the plaintiff and in favor of the defendants for costs. A motion for a new trial was filed, assigning, among other grounds, that the court had no jurisdiction of the parties or of the subject-matter of the action, and erred in denying the motion to remand. This motion was overruled, (35 Fed. Rep. 230,) and a writ of error sued out from this court.
Section 2 of the act of congress of March 3, 1887, entitled 'An act to amend the act of congress approved March third, eightteen hundred and seventy-five, entitled 'An act 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,' and to further regulate the jurisdiction of circuit courts of the United States, and for other purposes,' is as follows: 'Sec. 2. 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. Any other suit of a civil nature, at law or in equity, of which the circuit courts of the United States are given jurisdiction by the preceding section, and which are now pending, or which may hereafter be brought, in any state court, may be removed into the circuit court of the United States for the proper district by the defendant or defendants therein being nonresidents 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. And where a suit is now pending, or may be hereafter brought, in any state court, in which there is a controversy between a citizen of the state in which the suit is brought and a citizen of another state, any defendant, being such citizen of another state, may remove such 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: provided, that if it further appear that said suit can be fully and justly determined as to the other defendants in the state court, without being affected by such prejudice or local influence, and that no party to the suit will be prejudiced by a separation of the parties, said circuit court may direct the suit to be remanded, so far as relates to such other defendants, to the state court, to be proceeded with therein. At any time before the trial of any suit which is now pending in any circuit court or may hereafter be entered therein, and which has been removed to said court from a state court on the affidavit of any party plaintiff that he had reason to believe and did believe that, from prejudice or local influence, he was unable to obtain justice in said state court, the circuit court shall, on application of the other party, examine into the truth of said affidavit and the grounds thereof, and, unless it shall appear to the satisfaction of said court that said party will not be able to obtain justice in such state court, it shall cause the same to be remanded thereto. Whenever any cause shall be removed from any state court into any circuit court of the United States, and the circuit court shall decide that the cause was improperly removed, and order the same to be remanded to the state court from whence it came, such remand shall be immediately carried into execution, and no appeal or writ of error from the decision of the circuit court so remanding such cause shall be allowed.' 24 St. 552, 553.
John H. Mitchell, Geo. H. Williams, and Geo. H. Durham, for plaintiff in error.
J. N. Dolph, for defendants in error.
[Argument of Counsel from pages 464-465 intentionally omitted]
Mr. Chief Justice FULLER, after stating the facts as above, 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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