71 Ala. 363 | Ala. | 1882
The facts shown by the transcripts of records accompanying the motion are, that at the fall term, 1874, of the Circuit Court of Lawrence county, one William Richardson was indicted for an assault with intent to murder. At the fall term, 1875, he presented a verified petition, stating that he was a man of color, and, because of a hostile public sentiment and prejudice, he could not in that court obtain justice and the equal protection of the laws; wherefore he prayed that the cause be removed for trial to the Circuit Court of the United States, sitting at Huntsville, for the Northern District of Alabama. Thereupon an order was entered, removing and transferring the cause, to the Federal Court. In that court,- at the April term, 1876, a judgment was entered, reciting that the petitioner appeared by his counsel, and no prosecutor appearing, came a jury who returned a verdict in favor of the defendant (the petitioner), and adjudging that he go hence without day. On a subsequent day of the same term, an order was entered recalling and vacating this judgment as having been impro,vidently entered, and untrue in its recitals, and re-instating the cause on the docket. The cause was from term to term thereafter continued, the defendant appearing, until the fall term, 1880, when an order was entered, remanding the cause to the Circuit Court of the county of Lawrence. In that court, subsequent to the order of removal, entered at the fall term, 1875, there were no orders or proceedings in the cause until the order of remandment was made, when, at the spring term, 1881, there- was an order of continuance, and at the fall term, 1881, the defendant not appearing, a judgment nisi was entered on his recognizance against him and his bail. At the fall term, 1882, the defendant appeared and moved that the cause be stricken from the docket, because of the order of removal and the proceedings had in the Federal Court. The motion was granted; and the cause was stricken from the docket. The Attorney-General, on behalf of the State, now moves for a mcmdaimis, to compel the vacation of the order striking the cause from the docket of the Circuit Court, and its restoration for trial.
It is declared by section 641 of the Revised Statutes of the United States, that civil suits or criminal prosecutions com
The petition not disclosing a cause for the removal of the prosecution to the Federal court, the order of removal was erroneous. And if subsequently the order had been recalled as improvident, and the court had proceeded as if it had not been made, it may be that its proceedings would not have been pronounced void. The jurisdiction of the State court is not ousted by a mere application for the removal of a civil cause, or of a criminal prosecution to a Federal court. It is only when the application is' in proper form, conforms to the act of Congress authorizing the removal, stating facts bringing the case within the provisions of the act, that it becomes the duty of the State court to yield obedience to the paramount law, and to cease the exercise of its original jurisdiction. It may err either in determining that the application presents a case in which it ought, or ought not to cease its original jurisdiction; the determination is subject to
The failure of the State court to proceed in the prosecution while it was awaiting disposition in the Federal court, and until that court made the order of remandment, did not work a discontinuance. A discontinuance at common law was defined as a gap or chasm in the proceedings occurring after suit brought. It was a failure to continue the cause regularly from term to term, and if there were any lapses, or want of continuances, the parties were out of court. The plaintiff having left a gap or chasm in the proceedings, the defendant was not under the duty of further attendance upon the court. In its strictness it never obtained in our practice, and is inconsistent with the practice of continuing causes by a general order, and with the presumption of continuances, though not entered until the record shows the cause has been disposed of otherwise. There must here be some positive action by the plaintiff, by which a cause is taken from, and remains off the docket of the court, to work a discontinuance. — Drinkard v. The State, 20 Ala. 9; Ex parte Remson. 31 Ala. 270. The order of removal being improvident, though the cause was not regularly continued on
The Circuit Court erred in striking the cause from the docket, and a rule nisi must issue directed to the judge presiding, requiring him to show cause why a peremptory mcmdmius should not issue.