The Montgomery advertiser., 1902-07-02
ALL OF YESTERDAY WAS CON-
 sUMED IN ARGUING CASE.
Judge Heard Evidence and Reached the Conclusion That There Was Probable Cause
 for Prejudice.

 Was Probable Cause
 for Prejudice.
 The case of Montgomery county against J. J. Cochran and the Fidelity Trust and Deposit Company of Maryland to recover money on deposit in the banking house of Josiah Morris and Co. when the bank failed will be tried in the United States Supreme Court instead of the Montgom- cry City Court.
 In an opinion of extraordinary interest Judge Thomas G. Jones of the United States Circuit Court yesterday overruled the motion of the plaintiff, the county of Montgomery, to remand the case to the
 Montgomery City Court, from which
 court it was removed several months ago. The case was removed from the State Court on motion of the defendants, who averred that owing to local influence they could not get fair trial of the cause in that court.
 The argument of the case consumed the entire day in the Circuit Court and morn ing and afternoon sessions were held. The question was raised as to whether the court, having ordered the removal of the case upon a petition presented to 1t at the last term. had any power or dis cretion now to hear evidence which might require the remandlng of the cause to the State Court.
 The case. 1t will be remembered, was argued at length Tuesday. On the open ing of the court at s:so o'clock yesterday morning Judge Jones said he desired to hear the counsel. as advisers of the court. upon the question whether the parties having failed to demand jury in the State Court before the transfer of the case. could be denied their constitutional right of trial by jury under the Consti- tuition of the United States in the further progress of the cahse here. He an-
 nounced that he desired to hear sugges-
 tions on both sides of the matter.
 It appeared to be the unanimous opin- ion of the counsel. to which Judge Jones lagreed. that the waiver under the law could apply only to trials in State courts, and could not prevent the trial by jury
 under the Constitution of the United States unless the parties agreed in writ ing to waive it as provided by the Federal statutes.
 Judge Jones then delivered his opinion as to the nature of the evidence he would hear and the reasons for it. He read the opinion from manuscript in a clear voice. The opinion Is so full of interest to the public that It is herewith published fin full:
 In the short time since the adjourn
 ment last evening. have not had time to write an opinion upon the questions so ably and candidly argued yesterday by counsel. 1 will state as briefly, as may be, my views on the immediate questions raised An opinion will be filed hereafter.
 The Act. by which the right of re- moval In this case Is determined. 25 ~ k01 vides. among other things: any defen- dant being such citizen of another State may remove such suit into the Circuit Court at any time before trial thereof. when 1t shall he made to appear to such Circuit Court that from prejudice or local influence he will not be able to obtain justice in such State court" etc.
 Courts can neither make cases. nor de- cline to try them when made. Without reviewing the numerous decisions which are quite conflicting and have the sup
 port of great names, 1t seems to me
 that the rule to be extracted from all the decisions. in view of the history and purposes of the Constitution of the United States and the legislation to carry it into effect is this: When proper affidavit and application are made. setting forth the facts. as distinguished from naked con- clusions of facts or law. the prejudice or loyal influence may be made to appear to the Circuit Court by any of the modes of proof known to our jurisprudence. which will legally satisfy the conscience of the court of the existence of the facts which require removal It has a broad field of discretion as to the mode by which the facts shall be gathered and brought to it's notice. The court may act ev parte, or 1t may require notice to be given to the opposite party. frame the issues upon which 1t desires evidence. or hear evidence generally, either upon affidavits or testimony taken orally be- fore the court or by commissioner who may take and certify the evidence to- the court. If the court has acted ex parte, it may in it's discretion entertain a mo- tion to remand, at subsequent term, and frame the issues upon which 1t de- sires to hear evidence or enter at length into the minutest facts which bear upon the question Indeed. when the facts are properly brought to the courts atten- tion. the court may aid its conscience in reaching a right decision by taking notice of any facts of common knowledge in the community of which the court, sitting in that locality might take judicial knowl- edge in the trial of any other cause.
 Must Depend Upon Facts.
 Whether or not there shall be notice in the first instance, or whether there should be a re-examination of the facts upon which the court acted eX parte, must de- pend upon the facts and circumstances of the particular case, to be decided by the court upon the responsibility which attaches to every human tribunal which engages in the administration of justice,
 l have no doubt that at the term at which the removal was granted, or at a subsequent term, the court may hear any evidence which goes to show that the facts upon which the application was
 allowed are not fairly or truthfully stated, or. that the court has been misled or deceived or mistaken in any way. If 1t is proposed to offer evidence in this case to show that the facts stated in the application for removal as distinguished from legal conclusions which may be drawn therefrom, are untrue, or un- fairly or imperfectly stated. certainly the curt will hear evidence on such points On the other hand. 1t does not seem to me that 1t would serve any useful purpose to take affidavits that in the opinion of affiants prejudice or local influence does not exist, unless the affidavits should go further and strike down the salient facts upon which the removal was made, and from which 1t is insisted there is pre- judice or local influence. When the prominent facts are admitted or not de- nied. whether or not there is prejudice or local influence within the meaning of the constitution and laws of the United States, is a question which the court is bound to determine for itself according tnf f1,n fs1fa ha 1,.ays