43 F. 614 | U.S. Circuit Court for the Southern District of Iowa | 1890
Prom the record in this cause it appears that in November, 1889, Murray Nelson & Co., a corporation created under the laws of the state of Illinois, entered into a wu’itten contract with C. E. Myers & Co., citizens of the state of Iowa, doing business at Atlantic, Iowa, in regard to the purchasing, cribbing, shelling, and forwarding a large quantity of corn, the said Murray Nelson & Co. agreeing to advance the money needed to make the purchase of said corn, the quantity to be-purchased not to exceed 100,000 bushels; that on the 12th day of May,. 1890, said C. E. Myers & Co., in writing, assigned the said contract andi all rights thereunder to Theodore H. Brown, a citizen of Iowa; that dis-
The first ground urged in support of the motion to remand is that the petition for removal has not been presented to the state court for its action thereon, which it is claimed is a prerequisite to the attaching of the jurisdiction of this court. Counsel cite the case of Stone v. South Carolina, 117 U. S. 430, 6 Sup. Ct. Rep. 799, as an authority for this position. That cause came before the supreme court on a writ of error to the supreme court of South Carolina, and presented the question whether the petition for removal filed in the state court showed upon its face that the right of removal existed. The supreme court of the United States held that—
‘‘A state court is not bound to surrender its jurisdiction of a suit on a petition for removal until a.casehas been made which on its face shows that the petitioner has aright to the transfer. Yulee v. Vose, 99 U. S. 539, 545; Removal Cases, 100 U. S. 457, 474. It is undoubtedly true, as -was said in Steam-Ship Co. v. Tugman, 106 U. S. 118, 122, 1 Sup. Ct. Rep. 58, that upon the filing of the petition and bond, the suit being removable under the statute, the jurisdiction of the state court absolutely ceases, and that of the circuit court of the United States immediately attaches; but still, as the right of removal is statutory, before a party can avail himself of it, he must show*616 upon the record that his is a ease which comes within the provision of the statute. ”
This opinion, read in connection with the authorities cited therein, declares the rule to be that, if the petition for removal, taken in connection with the record of which it becomes part, shows upon its face that the cause is one removable under the provisions of the statutes of the United States, then the filing of the petition and bond terminates the jurisdiction of the state court, and causes that of the United States court to attach to the cause. The state court has the right to decide for itself whether the record shows that its jurisdiction has been terminated, and the United States court, in like manner, has the right to decide for itself, when a transcript of the record is filed, whether the record shows that its jurisdiction has attached. Both courts in this matter proceed at their peril, but the rule given us by the supreme court of the United States is that if, upon the filing of a petition for removal and the requisite bond, the record of the case shows that it is a removable cause, then, upon the filing of the petition and bond, the jurisdiction of the state court ceases, and that of the.United States court attaches to the case. It is not the presentation of the petition and bond to the court in open session that terminates the jurisdiction, but the filing the same, so that the same become part of the record of the particular suit. As a matter of correct practice, not, however, as affecting the jurisdiction, it is due to the state court that the party seeking the removal should in due season present the petition for removal to the state court, and invoke its consideration thereof, for it might be that the court might proceed in the cause without actual knowledge of the fact that its jurisdiction had been attacked. Under the provisions of 'the act of congress, it is made the duty of the partj^ seeking the removal of a case to file the transcript at the next ensuing term of the circuit court. In this case the term of the United States court began at Council Bluffs on September 22d, which was before the opening of the term of the district court in Audubon county; and hence the party seeking the removal was required to file the transcript in this court by that day, which was done. It also appears that, upon the day set for the hearing of the application for the appointment of a receiver, the fact of the filing of the petition for removal and the accompanying bond was brought to the attention of the judge, who declined to consider it until the court was in session in Audubon county. Counsel certainly did in this respect all that could be required of them. When the term of this court opened, September 22d, the transcript was filed in this court, as required by the statute; and thereupon complainant, through his counsel, appeared in this court, and on the 29th of September moved to remand the case to the state court. When the motion to remand was filed, the session of court in Audubon county had not commenced, and no laches in any particular could be imputed to the party seeking the removal of the cause. If, therefore, the record shows upon its face that the cause is a removable one, then the motion to remand is not well taken.
As already stated, the complainant was when the suit was brought, and