184 F. 165 | U.S. Circuit Court for the District of Eastern North Carolina | 1911
Plaintiff, a citizen of Pitt county, N. C., sued! out of the superior court of said county on September 11, 1909, a summons against defendant corporation, having its residence in the state of New York, which was duly served on September 14, 1909, returnable to the November term of said court. No court was held at the time prescribed for holding the November term, 1909. At the December term of said court a verified complaint was filed by plaintiff, setting out a removable cause of action; more than $2,000 being involved. No answer was filed. A general order was made by the court extending the time, in all cases not otherwise provided, for defendants to file answers “until the next term as of this term.” At the next succeeding term, January, 1910, a general order was'made in the same terms as that of the December term, 1909. On January 24, 1910, defendant filed a petition addressed to the judge of the Circuit Court, together with a bond, as prescribed by law, for the removal of said cause into the Circuit Court of the United States, together with an order for such removal, which was signed by the judge, and, pursuant thereto, the clerk of the superior court of Pitt county certified a transcript of the record in the case to the Circuit Court at New Bern, N. C., which was filed in the office of the clerk of said court April 14, 1910. No petition was at that time filed in the superior court of Pitt county. On February 23, 1910, the courthouse in said county, together with many 'of the records, including the summons and complaint in this action, was destroyed by fire. At the next succeeding term of said court, March, 1910, an order was made reciting the fact that the courthouse and records were destroyed, and directing “all parties have until the next term of the court to supply papers. In all actions in which complaints and answers were filed, it will only be necessary to file new complaints and answers without restoring the summons. In all cases where no answer had been filed, summons and complaint must be restored.” No other orders which could affect the rights of the parties to this action were made. On March 30, 1910, plaintiff filed a substituted complaint and prosecution bond, but did not file a substituted summons. On April 23, 1910, defendant
It is not very material .for the purpose of disposing of the cause whether the motion made by plaintiff to remand be considered as pending, or whether the defendant’s prayer for an injunction restraining plaintiff from proceeding with the trial'in the superior court of Pitt county be made the basis of the order. No process has issued in the equity suit. It seems clear that the order of January 24, 1910, was ineffectual to deprive the state court of its jurisdiction. The statute (Act Aug. 13, 1888, c. 866, § 1, 25 Stat. 435; 4 Fed. Stat. Ann. 349 [U. S. Comp. St. 1001, p. 510]), by which the power to remove is conferred, requires the petition and bond to be filed, in the first instance, in the state court. “The petition for removal must be presented to the state court, accompanied by a bond to entitle the petitioner to remove. The removal cannot be granted on petition to the Circuit Court.” Simonton, Circuit Judge (4th Circuit) in Mayo v. Dockery (C. C.) 108 Fed. 899. The case therefore remained in the state court, unless by filing the petition and bond in the office óf the clerk of the superior court on April 23, 1910, it was removed. Two objections are urged to this petition: That simply filing the petition and bond with the clerk was not a compliance with the provisions of the statute; that they should have been presented to the judge presiding so that he might pass upon their sufficiency. Several of the federal judges have so held, and it would seem correctly. Unless the attention of the judge of the state court is called to the petition and bond, how is it
This case does not come within' the words of the statute. It is conceded that the complaint sets out a removable controversy, one in which the plaintiff and defendant are residents of different states. The real question, therefore, is whether the case has been “removed” into this court. No petition having been presented to the superior court of Pitt county for the removal, as required by the statute, the conclusion seems inevitable that no controversy or cause is pending in this court, unless the failure to do so is an irregularity which the plaintiff may waive, thereby validating the act of the cleric of the superior court in sending to this court a certified copy of the record on April 14, 1910. The record shows that counsel for plaintiff entered a special appearance for the single purpose of making the motion to “retire the case from the docket,” etc. I am of the opinion that plaintiff has not waived any of his rights, even if he could, by his action, confer jurisdiction upon this court under the circumstances and conditions appearing in the record. The defendant in its bill asking for an injunction against the, plaintiff from proceeding
It is ordered that the motion for injunction be denied, and bill dismissed.