113 N.C. 603 | N.C. | 1893
Where it appears by. affidavit and petition, as prescribed by the act of Congress, that the Circuit Court of the United States has jurisdiction of the parties to and subject-matter of a suit pending in the State Court, and that on account of prejudice and local influence the petitioner will not be able to obtain justice in the Court in which the action
1. Whether the Court below was authorized to declare that it declined “ to permit the removal.”
2. Wliether the proper practice was to recognise the fact by a formal order, the cause having already been transferred to the Federal tribunal, that the Court would not proceed further, and thereby give notice to parties and witnesses that they would not again be called.
3. Whether, conceding that the Circuit Court had already acquired jurisdiction, the defendants could insist upon an order from the State Court to certify the record.
We do not understand why the learned counsel for the defendants should have pressed the point that there was any conflict between the decision of this Court in Lawson v. Railroad, 112 N. C., 390, and an opinion of one of the Circuit Judges of the United States, since no such conflict appears to exist; and if it had been shown, we claim the right, nevertheless, to hold to our own construction until the Supreme Court of the United States shall have interpreted the meaning of the statute otherwise. If, in the case at bar, it had appeared from the petition that the plaintiff was a citizen of a State other than North Carolina, then the Circuit Court would have had no jurisdiction of the case, and we would have adhered to our rulings in the Bostian Bridge cases, and unhesitatingly have sustained the Judge below in declining to desist from further proceeding and to have the record of the cause certified to a tribunal which, upon the face of the
On the other hand, it is only where the petition and affidavits show that the cause is one which the Federal tribunal is empowered to remove and to try that the jurisdiction of the State Court is ousted, ipso facto, upon the making of the order by the other Court. Whether the petition for removal be based upon the allegation of local prejudice, diverse citizenship or other grounds recognized as sufficient by statute, if it appear from the application itself that the Circuit Court cannot lawfully take cognizance, it is both the right and the duty of the State Court to ignore an order of removal and proceed as though it had had no notice of it. Stevens v. Nichols, 130 U. S., 230; Mansfield Railroad Co. v. Swain, 111 U. S., 379; Wilson v. Bruce, 108 U. S., 531.
“A State Court,”,said Chief Justice Waite, in delivering the opinion in Stowe v. South Carolina, 117 U. S., 430, “is not bound to surrender its jurisdiction on a petition for removal until a case has been made which, on its face, shows that the petitioner has the right to the transfer. * * * The mere filing of a petition for the removal of a suit which is not removable does not make a transfer.” Steamship Co. v. Ferguson, 106 U. S., 122; 2 Foster Fed. Prac., § 385a. The Constitution of the United States, and the statutes enacted and treaties made in pursuance of its provisipns, are the supreme law of the land, and when one of its Courts, in the exercise of its rightful jurisdiction, issues an order to one of the judicial tribunals of a State, it is at least a breach of judicial
It was error to “decline to permit” the removal up'on the affidavit offered therefor, and we think that it is the usual practice, and is proper, to enter a formal order that the State Court will not proceed further, to the end that parties and witnesses may understand that they will not be required to attend unless upon notice that the cause has been remanded. State v. Hoskins, supra. In all cases where the Circuit Court has the power to remove, and exercises it by making an order, it may issue a certiorari to the State Court, or, without asking for such writ, the parties may, upon filing a certified copy of the affidavit, petition and order of the Federal tribunal in the State Court, demand a certified copy of the record. Foster, supra, §390. It has been generally held that, upon the filing of the ceitified copy of the record of the Stale Court, the Federal Court may proceed to hear and dispose of a civil cause. Ibid. Where a criminal action is removed, it is the practice to issue a writ of habeas corpus cum causa. State v. Sullivan, 110 N. C., 513; State v. Hoskins, supra. It is not error in the State Court to refuse to order the record to be certified, because the Clerk was required, on request, to furnish a certified copy, and it was his duty to certify it to the Federal Court, in obedience to the writ of certiorari, without any motion or order made in his own Court, though comity might dictate to the Federal tribunal a different course; but it was clearly error in the Court below to resist the order after the record had been certified, showing sufficient ground for removal. We think, also, that when the jurisdiction of the Federal tribunal attached, the order that the Court would not proceed further should have been made, on motion of the defendants, for the reason already stated. State v. Hos-kins, supra.
If the application had been made to the State Court, and founded upon an affidavit or complaint alleging only diverse
Where a removal is asked upon the ground of prejudice o.r local influence the order may be granted upon a proper showing as to other matters'at any time before the carne has been effectively tried, unless a trial be in progress when the motion is submitted, “and undetermined.” Fisk v. Hanani, 142 U. S, 469. So that the order was made by the proper tribunal and in apt time, and the defendants took the precaution to procure a writ of certiorari and file a copy of the record in the State Court (2 Foster, supra, page 832), and afterwards submit his motion, thus conforming to the construction of the law, which was most exacting in its requirements. The order declining to permit the transfer of the cause was erroneous. Error.