REMOVAL OF CAUSES-CITIZENSHIP OF PARTIES. BLAKE v. McKiM. Supreme Court of the United States, October Term, 1880. Congress, in determining the jurisdiction of the circuit courts over controversies between citizens of different States, has not distinctly provided for the removal from a State court, of a suit in which there is a controversy, not wholly between citizens of different States, and to the full and final determination of which one of the necessary or indispensable parties, plaintiffs or defendants, seeking the removal, is a citizen of the same State with one or more of the plaintiffs or defendants against whom the removal is asked. In error to the Circuit Court of the United Siates for the District of Massachusetts. Mr. Justice HARLAN delivered the opinion of the court: This action was commenced in one of the courts of Massachusetts, by a citizen of Massachusetts, for the use of citizens of that State, against the executors of George Baty Blake, two of whom are citizens of Massachusetts, and one a citizen of New York. It is upon a probate bond, executed in the penalty of $50,000, by James M. Howe, as trustee under the will of Henry Todd, with two sureties, one of whom was the testator of the defendants. Its object is to recover from the estate of the deceased surety the sum of $5,000 for alleged breaches, upon the part of the trustee, of the bond sued on. The executors filed a joint answer, which presented a common defense, and subsequently, in proper time, filed their joint petition for the removal of the case into the Circuit Court of the United States for the District of Massachusetts. The petition was dismissed by the State Court. The transcript of the record was, nevertheless, filed in the circuit court. By the latter court the case, upon motion of plaintiff, was remanded to the State court. From that order this writ of error is prosecuted. We are of opinion that the case, as made by the plaintiffs, is not one of which the Circuit Court of the United States can take jurisdiction. In the Removal Cases, 100 U. S. 468, we had occasion to construe the first clause of the second section of the act of March 3, 1875, which declares that either party may remove to the circuit court for the proper district any suit of a civil nature, at law or in equity, pending in a State court, where the matter in dispute exceeds, exclusive of costs, the sum or value of $500, and in which there is "a controversy between citizens of different States." We held that clause to mean "that when the controversy, about which a suit in the State court is brought, is between citizens of one or more States on one side, and citizens of other States on the other side, either party in the controversy may remove the suit to the circuit court, without regard to the position they occupy in the pleadings as plaintiffs or defendants;" that, upon arranging the parties on opposite sides of the real and substantial dispute, if it appears that those on one side are all citizens of different States from those on the other, the suit may be removed all those on the side desiring a removal uniting in the application therefor. In that case an Iowa corporation represented one side of the dispute, while the other was represented by citizens of Ohio and Pennsylvania. The controversy was as broad as the suit. In Barney v. Latham [12 Cent. L. J. 467], decided at the present term, we held (construing the second clause of the second section of the act of March 3, 1875) that one or more of the plaintiffs or defendants, actually interested in a controversy wholly between citizens of different States, and which can be fully determined as between them, can remove from the State court the entire suit of which that separable controversy forms a part, provided it involves the amount prescribed as necessary to Federal jurisdiction. The executors of Howe, each of them having qualified and acted in the execution of the trust, were all indispensable parties to the suit. Gould's Pleadings, sec. 73, ch. 4; Dicey on Parties to Actions, s. p. 322; 1 Chitty Pl. s. p. 52. They all appeared and submitted to the jurisdiction of the court. The present case is, therefore, one in which the suit embraces only one indivisible controversy. It is not wholly between citizens of different States, and fully determinable as between them, because some of the defendants are citizens of the same State with the plaintiffs. The contention upon the part of counsel for the executors is, that the suit is removable upon their joint petition, under the first clause of the second section of the act of 1875. We are unable to concur in that view. There is, undoubtedly, some ground for such a construction, but we are not satisfied that Congress intended to enlarge the jurisdiction of the circuit courts to the extent that construction would imply. The principal reason assigned in its support is, that the first clause of the second section of the act of 1875 follows the words of the Constitution, when giving jurisdiction to the circuit court of a suit in which there shall be "a controversy between citizens of different States"-language which, it is claimed, does not necessarily require that such controversy must be wholly between citizens of different States. But that consideration was pressed upon our attention in the case of the Sewing Machine Companies, 18 Wall. 553, which arose under the act of March 2, 1867. 14 Stat. 558. That act authorizes the removal of a suit, involving the requisite amount, "in which there is a controversy between a citizen of the State in which the suit is brought, and a citizen of another State," upon an affidavit by the latter, whether plaintiff or defendant, showing that he has reason to believe, and does believe, that, from prejudice or local influence, he wouid not be able to obtain justice in the State court. The ar gument there, by counsel of recognized learning and ability, was that a controversy between citizens of different States is none the less a controversy between citizens of different States, because others are also parties to it; that to confine the Federal jurisdiction to cases, wherein the controversy is between citizens of different States exclusively, is to interpolate into the Constitution a word not placed there by those who ordained it, nd one which materially limits or controls its express provisions. We declined to adopt that construction of the statute, and held that Congress did not intend by the act of 1867 to confer the right of removal where a citizen of a State, other than that in which the suit is brought, is united, as plaintiff or defendant in the controversy, with one who is a citizen of the latter State. The construction for which counsel for plaintiffs in error here contend can not well be maintained without overruling the principles announced in the case of the Sewing Machine Companies. It is to be presumed that Congress, in enacting the statute of 1875, had in view as well previous enactments, regulating the removal of causes from the State courts, as the decisions of this court upon them. If it was intended, by that act, to invest the circuit courts with jurisdiction of all controversies between citizens of different States, although others might be indispensable parties thereto, such intention would have been expressed in language more explicit than that found in the act of 1875. We are not disposed to enlarge that jurisdiction by mere construction. We are of opinion that Congress, in determining the jurisdiction of the circuit courts over controversies between citizens of different States, has not distinctly provided for the removal from a State court, of a suit in which there is a controversy not wholly between citizens of different States, and to the full or final determination of which one of the indispensable parties, plaintiffs or defendants, on the side seeking the removal, is a citizen of the same State with one or more of the plaintiffs or defendants against whom the removal is asked. The judgment of the circuit court remanding the cause to the State court is, therefore, affirmed. MISCONDUCT OF JURIES-EVIDENCE. POOLE v. CHICAGO, ETC. R. CO. United States Circuit Court, District of Iowa. 1. An impropriety of jurors, which did not prejudice the verdict, is not ground for setting it aside and awarding a new trial. 2. The test of what impropriety is to be considered as prejudicing the verdict is the answer to this question: Was the misbehavior of the juror such as to make it probable that his mind was influenced by it, so as to render him an unfair and prejudiced juror? 3. Discussion, by a juror outside of the jury room, of a case pending and undecided before him, is the clearest evidence that he is not an unbiased and impartial juror, notwithstanding his disclaimer of the influence of such discussion upon his own mind. Motion for new trfal. Hagerman, McCrary & Hagerman, for plaintiffs; H. H. Trimble and J. W. Blythe, for defendant. LOVE, J., delivered the opinion of the court: This case was tried by jury at the last January term in Keokuk. The jury gave a verdict for the defendant. The plaintiff now moves for a new trial. The plaintiff is the widow and administratrix of Erastus P. Poole, deceased, who lost his life in consequence of personal injuries received in attempting to make a coupling, while in defendant's service. The action is to recover damages resulting from the injuries thus received. The plaintiff's counsel have, in support of the motion, insisted on many grounds of law aud fact which I deem it needless to consider. I shall confine what I have to say to the alleged misconduct of the jury. In this matter some very material facts, relied upon for the motion. have been disproved. Others have been so far explained by counter affidavits, as to relieve the case of the bad aspect in which it might otherwise appear to the court. I shall pass all doubtful or disproved facts without notice, confining my attention exclusively to such as have been clearly proved. It undeniably appears that a number of the jurors during the progress of the trial passed several consecutive evenings at cards in the room of one of the defendant's counsel at the hotel where some, but not all, of said jurors were stopping. This was a great and reprehensible impropriety, and if it did not clearly appear that the jurors mentioned occupied the room in question without any invitation or inducement from the defendant's counsel, I would not hesitate to set aside the verdict on that ground alone. But it does appear affirmatively by the affidavits which have been filed, that the jurors occupied Judge Trimble's room under peculiar circumstances, which relieve both Judge Trimble and Mr. Blythe, his associate counsel, from any just censure or responsibility. It is due alike to the counsel concerned and to the court that the circumstances referred to should be stated and placed upon the record. It appears that Judge Trimble and Mr. Blythe occupied separate rooms upon the same floor of the hotel. These gentlemen were closely occupied at Mr. Blythe's room till late in the evening of each day during the trial, examining witnesses and otherwise preparing their defense. Judge Trimble's room was virtually unoccupied by him till a late hour of the night, and not, it appears, till the card party had dispersed. The fact that thə jurors in question occupied Judge Trimble's room at all is satisfactorily explained. It appears to have been arranged that some jurors in attendance upon the court should while away their ev enings at cards in the rooms of Col. Milo Smith, who was a juror of the regular panel, but not in the Poole case. It so happened that Mrs. Smith, after some days, reached the city, and it therefore became necessary to abandon the arrangement for meeting at Col. Smith's rooms. Thereupon, John R. Wallace, who was not a juror in the case then on trial, seeing that Judge Trimble's room was unoccupied, asked him if he had any objection to their card party meeting at his room. He did not state to Judge Trimble who the persons engaged in the card playing were; and the latter, when he gave consent to their using his room, was not aware that any juror in the Poole case was of the party. It clearly and indubitably appears that when Judge Trimble and Mr. Blythe afterwards came to know that some members of the jury in the case then on trial were of the card party, they kept studiously aloof from Judge Trimble's room. It is proved clearly that Mr. Blythe was never in the room at all when the jurors were there, and Judge Trimble was in the room only once during the several nights in question, and then only for a single moment to obtain some needed papers. 1t appears that neither Judge Trimble or Mr. Blythe ever, on any occasion during the trial, spoke to any jurors concerning the case, or alluded to the same in their presence, except in open court. When Judge Trimble found that some members of the jury in the case were occupying the room as stated, he was placed in a somewhat embarrassing situation. He had given his consent to their occupancy of his room, which was practically vacant. He could not well rescind his assent and order them to vacate the room without danger of giving offense,and perhaps prejudicing his client's cause. Both he and Mr. Blythe seem to have done all that could reasonably be expected under the circumstances, they kept aloof from the room during its occupancy by the jurors, and abstained scrupulously from making any allusion to the case on trial to any member of the jury. But the conduct of the jurors themselves was plainly inexcusable. Though it may have been the result of mere thoughtlessness, it was manifestly calculated to bring grave suspicion upon them and upon any verdict they might render. All that the public and the living suitor could know was, that several of them who were actually trying the .cause were spending night after night in the rooms of the defendant's counsel. How and by what means and under what circumstances they got there; whether with or without invitation; whether with or without a purpose respecting the trial; whether to receive or not to receive hospitality, could not be known or explained to the world without. All this would be matter of mere conjecture, and what conjectures were likely to be made, it is needless to say. Even those at the hotel who were informed that these jurors were engaged in an innocent game of cards for amusement, might very naturally ask why they, did not occupy the room of some one of their own number who was stopping at the house? The circum stances which have been satisfactorily explaineċ to the court were necessarily unknown to the public; and although public opinion ought by no means to influence or control the verdict of juries, yet a decent regard to the opinions of mankind is a duty not at all incompatible with the higher and paramount obligation to do exact justice between man and man. Such conduct as I have referred to on the part of jurors while trying a cause, merits the most decided reprobation. It tends directly to bring suspicion and discredit upon jury trials, and upon the administration of justice itself. No suitor could feel otherwise than aggrieved at a verdict rendered against him by jurors so demeaning themselves; and a court which should fail to discountenance such conduct when brought to its attention, would justly lose the esteem and confidence of all just men. If there was no fact before me other than the misconduct just mentioned. I should, with great reluctance, permit the verdict to stand. The example would, I fear, be infinitely mischievous. I should, therefore, discarding all nice distinctions, feel inclined to put the seal of disapprobation in the most decided manner upon such misconduct by setting aside the verdict. But there are other facts to be considered. It is shown, to my entire satisfaction, that Mr. W. H. Hope, a member of the Poole jury, in utter disregard of the instructions of the court, while the case was yet before the jury and undecided, talked freely and fully with G. W. Meredith about the case, expressing himself to the prejudice of the plaintiff and the plaintiff's counsel. Meredith says Hope began the conversation without any question from him, and that he carried it on in a sneering way, saying, among other things, that "Hagerman had the court room full of Keokuk people, who, whenever he said anything, applauded, and that Keokuk thought they had got this thing fixed up very nice," etc. It is needless to say that there was no such thing as applause in the court room. Any such manifestation would have been very quickly suppressed. Hope in his affidavit denies this, but I am constrained, nevertheless, to credit Meredith's statement. Meredith, it seems, is a respectable farmer living in Van Buren County. His character is unquestioned. He appears to have no connection whatever with the plaintiff, and no interest in the litigation. What, therefore, could have moved him to fabricate such a statement as he has made and sworn to? What motive, what inducement had he to commit voluntary and gratuitous perjury? Meredith's testimony is positive and affirmative. If false, it was wilfully false. But Hope's denial is negative. He may possibly have forgotten what he did say to Meredith, or, at all events, he may have had but a very dim and indistinct recollection of the conversation. At any rate, Hope, finding his conduct as a juror called seriously in question, had a very strong motive for denying the truth of Meredith's statement, while Meredith had none whatever to make a false affidavit. It may be added that Hope was one of the jurors who, though not stopping at the Patterson House, was present with the rest at the card party there, and that we find him taking a decided and active part when the jury first retired for consultation. Mr. Carter, a member of the jury, testifies that immediately after the jury retired for consultation, Hope moved that Palmer Clark act as foreman, which was carried. Another gentleman, who was also present with the card party, then moved that Hope act as secretary, which also prevailed. The balloting then commenced. It is remarkable that some one did not move the appointment of a committee to prepare and report a proper verdict to be adopted by the jury. That was all that seemed wanting to transplant the tactics of the veteran politician in full bloom from the caucus to the jury room! There being no evidence in the affidavits before the court to implicate the defendant in the misconduct of the jury, counsel contends that the court ought not to set aside the verdict, because the misbehavior of the jury is no ground for granting a new trial where the successful party is not at fault, and when there is no prejudice to the losing party. And in this connection the counsel argue that the verdict was clearly right, and that no other verdict could have been rendered upon the evidence. There are certainly authorities to sustain this doctrine, and with a proper understanding of what constitutes prejudice, I see no good objection to it. But what is prejudice? Can the court say that where the jury misbehave so that the losing party has not had a fair and impartial trial, there is no prejudice, because the court may be of opinion that the verdict is right? By no means; because the losing party has a right to a fair trial by an unbiased jury, and to be deprived of this right is clearly prejudice to him. The losing party is not bound to accept the judgment of the court; he is entitled to the verdict of an impartial jury. Suppose, in a criminal case, the jury should commit the fault of receiving information outside of court, and the judge should be of opinion that the conviction was nevertheless clearly right, could the court pronounce that there was no prejudice to the prisoner, and therefore, refuse him a new trial? Clearly not; and yet there is, in this respect, no distinction in principle between civil and criminal trials. The right to a fair and impartial trial by jury is the same in both. The true idea of prejudice in this connection is this. Was the misbehavior of the juror such as to make it probable that his mind was influenced by it so as to render him an unfair and prejudiced juror? Doubtless, there may be cases of misbehavior in which the court could say without hesitation that the mind of the juror could not possibly have been affected by the misconduct imputed to him. Many illustrations may be found in the books of misbehavior without prejudice in this sense. Thus, if after the jury should find their verdict and seal it up, and before its delivery in court, a juror should talk with third persons about the merits of the case. there would be clearly misbehavior, but not prejudice in the proper sense of the word. The court might pronounce without hesitation that the communications made to the juror under such circumstances could not possibly have influenced him in finding the verdict. In such case there would be misconduct without prejudice. But where the natural tendency of what a juror does or says, or willingly listens to from others is, to bias his mind, or where his misconduct evinces a prejudgment of the case, or ill will, or passion against the losing party, the inference of prejudice in the true sense inevitably follows, because the verdict can not be said to be the result of a fair trial. There is no right more sacred than the right to a fair trial. There is no wrong more grievous than the negation of that right. An unfair trial adds a deadly pang to the bitterness of defeat. Now the human mind is constituted so that what one himself publicly declares, touching any controversy, is much more potent in biasing his judgment and confirming his predilections, than similar declarations which he may hear uttered by other persons. When most men commit themselves publicly to any fact, theory or judgment, they are too apt to stand by their own public declaration in defiance of evidence. This pride of opinion and of consistency belongs to human nature. Where, therefore, a juror talks outside of the jury room about a case pending and undecided before him, he gives the clearest evidence that he is not an impartial and unbiased juror. The very discussion of any matter by a juror, elsewhere than in the jury room, tends to the forming of false impressions and prejudgments. Nor will it do for a moment to accept the statement of the juror that what he has said or heard has not affected his judgment or influenced his verdict. Almost any juror, when detected in such misconduct and arraigned for it, will disclaim the influence upon his own mind of what he has uttered in violation of his duty. This is human nature. Moreover, few have either the capacity or candor to speak with any reliable certainty of the elements which enter into their own minds in pronouncing a judgment or verdict. The only safe rule for the court to follow is, to form its judgment from the natural and logical consequences of the juror's words and conduct, with little regard to his protestations in exculpation of himself. All parties, and especially corporations, have a deep concern in keeping juries strictly to the line of duty and propriety. When they deviate from that line, there is no longer any security against those malign, extrinsic influences which are sure to prevent and poison the streams of justice. An order will be entered setting aside the verdict and granting a new trial; and the court will consider a motion, if made, to rescind the order transferring the case to Keokuk for trial. It is quite evident that there is in that city a deep and all-pervading sympathy for this unfortunate plaintiff, whose home is among its citizens, and in whose sorrows they largely participate. Although this feeling is but natural, and by "no means discreditable to the citizens of that city, yet the manifestation of it at the trial was so marked and so unusual, as to induce a belief that the ends of justice will probably be best subserved by a trial elsewhere. Judge McCrary, having been of counsel, took no part in this case. CUSTODY OF MINOR CHILDREN-EQUITY -DUTY OF COURT. IN RE BORT. Supreme Court of Kansas, May Term, 1881. It is the duty of a court whenever the possession and custody of minor children is sought by habeas corpus to make such order for their care and custody as the best interest of the children may require, and to that end, it may commit them to the custody of another than a parent, and this notwithstanding the fact that in a decree of divorce they were committed to the care and custody of either father or mother. Such a decree may bind the parents inter sese, but does not conclude the court as to the best interests of the children. BREWER, J., delivered the opinion of the court: This is a proceeding in habeas corpus brought by Frank B. Bort, the father of Edith M. Bort and Fred Bort, against Medora E. Bort, the mother, for the possession of these children. At the time of the commencement of this proceeding the children lacked a few weeks of being respectively four and five years old. The parents were divorced by a decree of the Circuit Court of Sauk County, Wisconsin, on January 26, 1881. This decree awarded the custody of the children to the father, and, upon this decree plaintiff mainly relies. The petition in said action was filed April 17th, 1880, by Mrs. Bort. At that time both parties resided within the jurisdiction of said court. Defendant filed a cross petition in that action. Soon after commencing her action, Mrs. Bort took her children and came to Leavenworth to live with her parents, where she has ever since resided. In October, 1880, she dismissed her suit in Sauk County, but the case went on to trial upon the cross petition, and upon that a decree was entered in favor of defendant, giving him a divorce for the fault of plaintiff, and also the custody of the children. The petitioner invokes the benefit of that clause of the Federal Constitution which provides that full faith and credit shall be given in each State to the judicial proceedings of every other State, and insists that that decree concludes the question as to the rights of the respective parents at its date, and that, unless some subsequent change in the relative position and fitness of the respective parties is shown, the custody must be given to· the father. This claim seems to rest on the assumption that the parents have some property rights in the possession of their children, and is very just repudiated by the courts of Massachu-setts. 2 Bishop on Marriage and Divorce, 5th ed., p. 204. We do not, however, propose to place our disposition of this case upon the decision of any such question as that. We shall concede that, as be-tween the parents that decision is a finality, and still we do not feel warranted in sustaining the petition of the plaintiff. Shall they be court place the We understand the law to be, when the custody. of children is the question, that the best interest of the children is the paramount fact. Rights of father and mother sink into insignificance before that. Even when father and mother are living together, a court has the power, if the best interests of the child require it, to take it away from both parents and commit the custody to a third person. In other words, a court of chancery stands as a guardian of all children, and may interfere at any time and in any way to protect and advance their welfare and interests. Now in a divorce suit the court is limited to the question: Which of the two parents is the better custodian of the children? The decision only determined the rights of the parties inter sese. But in this proceeding the question is, What do the best interests of the children require? given to either party, or shall the custody with some other person? tioner and respondent, or plaintiff and defendant, in this proceeding, the parents of these children, late husband and wife, have filed in this court most bitter and malignant charges against each other. We have examined the testimony adduced in support of these charges, and are glad to know that neither is as bad as the other would have us believe. It is sad to see two, who but so recently were joined in the holiest of unions, and who pledged to each other a love and faith even unto death, now searching for epithet and charge to blacken each other's good name, and to pass down to their little ones an inheritance of dishonor. When the fury of present anger shall have spent its force,and calmer hours come, justice and generosity, we can but believe, will resume their sway, and bitterly will each regret the useless and untruthful charges against the other. Now the peti- But the question for our decision is. What do the best interests of the children require? The petitioner is a traveling salesman, away from home a large part of his time. While away, the children would necessarily have to be under the care of his mother, a woman past middle age, or such hired help as he might secure. On the other hand, Mrs. Bort is now living with her parents, Mr. and Mrs. D. W. Powers, reputable citizens of Leavenworth. They have an elegant home two or three miles from the city, and have expressed 1 |