Allen v. Ryerson

1. The motion to remand is made upon three grounds. The first ground is that the petition for the removal, upon which the state court acted, was not verified. The removal was applied for and ordered under the act of July 27, 1866. This act does not, in terms, require the petition to be verified (see Sweeney v. Coffin, [Case No. 13,686;]) and we do not think the cause should, for this reason, be remanded. The plaintiff is not concluded, by-the petition for removal, as to the citizenship of the defendant Ryerson, but may contest that matter in this court, by a plea in the nature of a plea in abatement.

2. The substantial controversy, as disclosed in the plaintiff’s bill and in the pleadings, is one between him and the defendant Ry-erson. The plaintiff is a citizen of Iowa, and Ryerson is a citizen of Illinois. Judging of the case as made by the pleadings, we think there can be a final determination of the *512controversy without the presence of the sheriff. If the plaintiff maintains his hill, the decree will restrain the defendant Ryerson, and his agents and attorneys, which will include the sheriff, from further interference with the plaintiff’s property; and the court may, if ground of equitable jurisdiction exists, also ascertain and award the plaintiff damages caused by the acts of the sheriff, under Ryerson’s direction. If such a decree be satisfied, this will end the case as respects the sheriff. If not satisfied, the plaintiff can proceed, in the state court, against the sheriff, for as to the latter the cause still remains in that court. If Ry-erson shall succeed in this court, and the bill be dismissed on the merits, this will dispose of the plaintiff’s case against the sheriff in the state court.

3.It is our opinion, that where-a case is, made for the removal of a cause under the act of July 27, 1866, the petitioner for removal is not obliged to make an affidavit of the existence of prejudice or local prejudice, such as is required in applications under the act of March 2, 1867. Motion denied.

concurs.