134 Mass. 338 | Mass. | 1883
The petition for removal was filed in the Superior Court on June 14, 1882, and was allowed by that court on July 11, 1882. From the order allowing this petition the plaintiff appeals to this court. It does not appear that any rulings were requested of the presiding justice of the Superior Court, or that any exceptions were taken to any rulings made by him. Two questions have been argued in this court: first, whether an appeal lies to this court from the order of the Superior Court granting the petition; and second, whether the defect in the condition of the bond is a reason why the petition should not be granted.
This court has" jurisdiction of “ questions of law on exceptions, on appeals from the Superior Court, on cases stated by the parties, and on special verdicts,” &c. Pub. Sts. c. 150, § 7. In regard to appeals from the Superior Court, it is provided that “ a party aggrieved by a judgment founded upon matter of law apparent on the record in any proceeding, civil or criminal, except a judgment upon an answer or plea in abatement or motion to dismiss for defect of form of process, may appeal therefrom to the Supreme Judicial Court,” &c. Pub. Sts. c. 152, § 10. Before the appeal can be entered in this court, there must first be a final disposition of the whole case in the Superior Court. Riley v. Farnsworth, 116 Mass. 223.
It is obvious that an order or judgment of the Superior Court, refusing to grant a petition for the removal of an action to the Circuit Court of the United States, is not a final judgment disposing of the whole case in the Superior Court. The case still remains in the Superior Court, to be determined there. But an order allowing such a petition, and removing the cause, does dispose of the whole case in the Superior Court. Nothing more remains to be done in that court. From such an order, made upon allegations of fact as they appear of record as a final judgment in the cause, an appeal lies immediately to this court. The distinction is similar to that made between an order dismissing an action for matter of law apparent on the record, and an order refusing to dismiss it. Lamphear v. Lamprey, 4 Mass. 107. Bowler v. Palmer, 2 Gray, 553.
It does not distinctly appear in this case that the bond was approved by the presiding justice of the Superior Court. Neither does it appear that the attention of the court was called to the peculiar form of the bond, and that the plaintiff either excepted to, or appealed from, any order of the Superior Court approving the bond; but if it be assumed that the Superior Court did approve the bond, as the parties in argument concede, and also assumed that it is open to the plaintiff, under his appeal from the order allowing the petition, to contest here the sufficiency of the form of the bond filed in the Superior Court,
No answer by the defendant has been filed, and it does not appear what the defence is, except by the general allegation of the petition that the defendant has a defence arising under the laws of the United States in relation to it. The question has not been raised by the plaintiff which was decided one way in Turton v. Union Pacific Railroad, 3 Dill. 366, and the opposite way in Magee v. Union Pacific Railroad, 2 Sawyer, 447, and has not been considered; The order of the Superior Court removing the cause must be Affirmed.