Show KING FROMI bis bia scare canard of box elder report of 0 the dinst knocked into a cocked hat salt lake city utah march 15 1007 1907 lion C hoist mil or brigham city brigham UrE city utah dear sir 1 judge enderson II n and I 1 have been notified of the transfer transi er by Judge alakl maughan of the case ot or BrIg brigham ilant city vs ct al from court at brigham city to the united states slates circuit court in reply to your inquiry ns is to why this was done and whether anything could have been done by the city and its attorneys to prevent lt it will say that tile the law is very clear that when a suit Is brought by a resident ot of the state against a nonresident non resident oi or i a foreign corporation and the amount involved exceeds the nonresident non resident individual or corpor corporation has the right upon filing a petition to have I 1 the caso transferred from the state court to the federal court nothing I 1 ng ca baabe n be done to prevent such a transfer it is the duty of 0 the judge or of the state court upon the filing ot of a petition accompanied by a suitable bond to ta make an order immediately transferring transferring the cause as prayed for itis done as a matter of course without hearing and without notice to the pa plaintiff al litiff or his attorneys in the rich case your former city attorney mr air jones brought suit against rich knudson and the brigham h in city electric light co to condemn J a parcel of land upon which to place a power house after the suit was brought a wyoming corporation po ration was organized and it acquired the he land upon which the power house Is situated by obtaining a t tate ate ri cAtter this al emr n in the district court at t brig ani city for permission to make the dox box elder power and light co the wyoming Vy oming corporation a party defendant at this time neither judge henderson nor myself had been employed by the city to help care for the interests in the litigation connected with the elec dec trie light plant judge hart made an order granting jones petition sometime afterwards and before mr jones made the box eldr elder power L t light co a party judge henderson and myself were employed and we concluded that it would be unwise to make this wyoming corp corporation oratio a party because it if we did so it niwa might give an opportunity to have the case transferred red to the federal court when we declined to make this company a party part it then filed a motion before judge hart in which it sought to compel the city to make the dox cox elder power light co a party this matter was argued before judge hart very fully and he supported our bur contention and refused to compel us to make the box elder power light co a defendant to the suit various motions dilatory in fit their character were filed by the attorneys for rich et al ind and those these were disposed of and the case finally set down for hearing this month judge henderson and I 1 were all ready to try the case when a few days ago we were called up by the clerk by phone and told that a petition had been filed by mr lee in behalf of the box elder power light co praying that the case be transferred to the federal court I 1 told the clerk over the phone that we were opposed to the transfer and that wo we did not think the court ought to grant the motion and that if lie he would hear us we would be glad to go to brigham city and present the matter at the same time mr air jenson the city attorney over tile the phone advised me of the situation and I 1 biado the same sta statement to him A day or two later lie he came to salt lake and had a con conference ferene e with judge blender myself in regard to the matter we were all of 0 opinion that the court should not transfer the I 1 he case to the he united states court hut but ot of course realized that tile the question was one for judge maughan Mau glian to determine mr jenson thought that the court would not hear any argument in the matter but judge henderson and I 1 prepared a letter which we sent to mr jenson presenting our views in regard to the matter and asking ashing him to call the courts attention to the same sain e and state stale our position in the matter malter T this h i we arc informed he e did notwithstanding this judge maughan made an order transferring trans fering the case to the federal court while we did not think the showing was sufficient to transfer the cause a U se we felt that perhaps in fit the long run it would be just as well for this reason under the law if the state court refuses to make tile the order of transfer the petitioning party can take lake a certified copy of the proceedings and file them with the united states court just the same and the united states court will proceed liro ced with the case in the same manner and form as it if the state court had made an order of transfer 1 so S 0 that it if judge maughan biad refused to transfer the case the attorneys for fo t the box eldri power light co would have obtained a certified copy of the records nd flies files and and filed theae the same in the federal court in such an event we would have been compelled to appen ap pearIn t in the federal colit and take the same proceedings that e arenow are now taking and we would have also felt thai it would not he be wise ivie to proceed with the basea casei in tile the state cour courts ts until the matter had been dispose posed d of in fit tile the federal courts and quie likely judge maughan even if fr ive insisted upon trying thie the case would have ordered all proceedings stayed pending the action of the fedral cral courtlan Courtl jn tho matter it will thus bus lie jc seen that there is absolutely I 1 nothing lost sc ja r as the city is concerned berned ned nil iralli e e course our se has bee been n cd if it bidge judge maughan had cot granted the petition and had refused to make the order ot of transfer under the law the petitioning party could have gotten the case into the federal court and the city would then have been eom compelled to komove to remand or to file a plea in abatement oi or answer or ta take ch steps as it thought were n necessary ec essary I 1 indeed 11 jt it would have 1 taken the he same steps that fudge henderson tl erski aid iare flare now taking to pro 1 teat the aits altys 11 1 s ai glus f it I 1 i I 1 judge e jfe s and iare I ar are e terl I 1 ri arf ad I 1 n pl p T morrow we will call them up at the earliest possible moment and seek to have the case remanded to the state court it if judge marshal should refuse alien of course we will try the case inere here instead of fit at brigham city if he grants the motion the case will be remanded to the state courts and we will then tr try it before Al maughan aughan As above stated slated suppose judge henderson enderson II and I 1 had appeared before judge maughan aughan Al and argued against the transfer and had prevailed and he had refused to transfer the cause the dox bos elder power light co woula lave have need a certified copy of the record in the federal court just the same and we would then have been compelled to make the same 1110 motions that wo we are now making and of course we would not have felt like proceeding with the trial of the cause in judge baughans maughans Maug hans court until the federal court had passed upon the motion which we are filing its As above state siaiku state stare judges almost invariable remove causes to the federal courts upon a petition uch such as that filed in this case in view of the record showing that the dox cox elder power light succeeded to the interests of the defendants in a the suit after the suit was started and in view ot of the further fact that the city did not make the foreign corporation a party judge hendeson henderson and I 1 were nvere of opinion that judge Al maughan aughan would have been perfectly justified ju stifled in not transferring the case but as stated his doing so does not jeopardize the cites rights nor does it delay the final result in any manner it is silly and absurd for all anyone yone to indulge in criticism over this matter while as stated we are of opinion that the court could have with propriety denied the petition to remove still his denial would not have prevented the removal in the manner above indi bated and it might have complicated matters particularly if we had urged judge maughan aughan Al to proceed with the trial of the cause and he had proceeded and then judge marshal had held bield that it was a case subject to removal in that event we would have had clash clas ings bings between the two courts and would have plunged the city into more inore trouble and difficulty As above indicated indicate I 1 was ready to go to brigham city and argue the platter patter before judge Al maughan aughan if I 1 had thought he would have heard argument As stated when I 1 first called the clerk and mr jenson by phone they hey adv advised I 1 sed me thattie th atthe court would pass on the matter immediate continued on page tour four KING HEARD FROM FM continued from first picc p ige ly y or that it if the court did not ilo do so I 1 should ha be advised and given an opportunity port unity to be heard not hearing anything until sir mr jenson came came to salt lake city I 1 supposed of course that thai the court had passed on the anat tell tei when 3 mr rr jenson was here as above stated he advised judge henderson and myself that the court would pass on oil the fhe matter monday morning and that there had been no intimation ilion fiori the court that lie he de shed any argument on the matter however the action of the court in transferring trans ferrins the hie cause as above indicated will not effect the result whatever tell the members ot of lie he city counell council that there here is nothing to be concerned over in regard to this question of removal it is a matter that cannot bo be helped the dox box elder power light co have tile the light to file a petition if they desire and it if their position Is right that they are a proper party and are properly in the case then of course judge marshall will retain jurisdiction of the case and the case will be tried berol before hini him you have lave certainly been very persistent in pushing the litigation and have left nothing undone to bring the matter to a successful conclusion there has been no delay so far ns as you and the city council are concerned the dilatory motions and pleas and proceedings or of the he defendants in ill the cases have produced produce the delays and anal we cannot avoid them however judge henderson enderson II and alid I 1 are doing dohig everything possible to bring the case to a speedy conclusion and wi are confident that everything will result favorably to the city yours truly WILLIAM 11 II KING |