| Mass. | Dec 31, 1914
This is an appeal, by the plaintiff in an action of tort for personal injuries, from an order of the Superior Court accepting the defendant’s petition under the Judicial Code, U. S. St. 1911, c. 231, §§ 28, 29, approving its bond and ordering that the case be removed to the United States District Court.
It is not disputed that the petition alleges every jurisdictional fact, other than that of notice, required by the Judicial Code, and that, if the absence of the allegation of notice be disregarded, it became the duty of the court, if the petition was accompanied by a proper bond (as it was), “to accept said petition and bond and proceed no further in such suit.” Nor is it denied in such case that it was the further duty of the court to make a formal order for removal; indeed if it failed so to do, the cause nevertheless stood removed. Wabash Western Railway v. Brow, 164 U.S. 271" court="SCOTUS" date_filed="1896-11-30" href="https://app.midpage.ai/document/wabash-western-railway-v-brow-94539?utm_source=webapp" opinion_id="94539">164 U. S. 271.
Before the passage of the code the court proceeded ex parte; its duties were largely ministerial, and only in the smallest sense of the term judicial. Goins v. Southern Pacific Co. 198 Fed. Rep.
The Judicial Code re-enacted, with some formal changes not material to this issue, the then existing law, but after stating that “It shall ... be the duty of the State court to accept said petition and bond and proceed no further in such suit,” added these words: “Written notice of said petition and bond for removal shall be given the adverse party or parties prior to filing the same.”
The plaintiff’s complaint is that it is nowhere alleged in the defendant’s petition that such a notice was given him before the filing of the petition. He does not in terms charge that written notice was not in fact given, but that the defendant has not set out in his petition, in any form of words, that it has been given.
Inadvertent failure to allege performance of a statutory condition, due to accident, mistake or waiver, is made to stand on the same footing as wilful and intentional non-compliance with the provision of the act. If written notice should have been in fact given or waived and the petition should fail so to state, it is at least doubtful whether the Superior Court had power to permit an amendment after the expiration of the time within which a petition must be filed. United States v. Sessions, 205 Fed. Rep. 502.
Such a requirement of notice is not merely formal, neither is it jurisdictional in a broad sense, but it is substantial, and if it is not waived and is insisted upon, may require the United States District Court to deny its jurisdiction and remand the case to the State court. Arthur v. Maryland Casualty Co. 216 Fed. Rep. 386. As the State court has not power to pass upon the fact of notice or waiver thereof, and as the inference arising from the failure to allege notice may result in a denial of right, it would seem that the act should be so construed as not to effect such a result. This may be accomplished without violence to legal precedent by holding that the failure to allege the giving of written notice, like
Order affirmed.