Hall v. Brooks

14 F. 113 | U.S. Circuit Court for the District of Eastern New York | 1882

BbNedict, D. J.

This is a motion to remand the cause to the state court because of a failure to file the record in this court on the first day of the next term, which was November 1st. It is admitted that the record has not been filed. The defendant offers now to file it, and his excuse for the failure sooner to file it is that his attorney made inquiry at the clerk’s office as to the' time of holding the next term of tho court, and understood the information there given him to import that the next term of the court would be in December, and therefore supposed that he had until December to'file the record.

According to the law as settled by the supreme court of the United States, (Baltimore & O. R. R. v. Koontz, 13 Reporter, 228,) failure to file the record on the first day of the next term does not deprive the circuit court of jurisdiction over the cause, and when a sufficient cause for the failure so to file the record is shown, it is the duty of the circuit court to permit tho record to be filed, and allow the cause to proceed in the circuit court.

The excuse here made for tho failure *to file the record at the November term is sufficient, and the defendant must therefore be allowed to file the record at this time. The fact, if it be a fact, that the motive for removing the cause to this court was to delay the trial, is immaterial. The failure to file the record on the first day of the November term caused no delay of the trial, and in nowise prejudiced the plaintiff. This being shown, and sufficient excuse for the omission given, it is the duty of this court to'retain the cause, without regard to the motive which impelled the removal. Upon filing the record, an order may be entered denying the motion to remand.

See Railroad Co. v. Koontz, 104 U. S. 5.