| U.S. Circuit Court for the District of Minnesota | Apr 24, 1884
It has been decided by the supreme court of the United States that the jurisdiction of the United States circuit court attaches in a case removable, under the statute, at the time when the petition and bond is filed in the state court. The transfer of jurisdiction is then complete in advance of the entry of a transcript of the record in the clerk’s office of the circuit court. Duncan v. Gegan, 101 U. S. 812; Railroad Co. v. Koontz, 104 U. S. 15; Steam-ship Co. v. Tugman, 106 U. S. 122; S. C. 1 Sup. Ct. Rep. 58; St. Paul & C. Ry. Co. v. McLean, 2 Sup. Ct. Rep. 499. The circuit court does not take the suit unless its jurisdiction appears of record; and if, before the statutory time when the removing party is required to enter a copy of the record and his appearance in the United States circuit court, either party procures, a transcript and files it in the clerk’s office, the jurisdiction then appears of record, and all proceedings necessary to prepare the cause for trial at the next session of the court can be taken by either party. The court then has jurisdiction of the cause as if it had been commenced there by original process.
In the case of Kern v. Huidekoper, 103 U. S. 487, the plaintiff applied for removal July 6th, and filed the transcript in the clerk’s office of the United States circuit court on July 27th. The term of that court prescribed by law began on July 2d, before the petition for removal was filed in the state court. On November 14th, the July term still continuing, the circuit court made, an order approving the filing of the record. The. supreme court held that the filing of the record July 27th gave the circuit court the right to proceed with the cause; that is, as I understand the decision, to go on and perfect the issues, if necessary, and grant provisional remedies, but the removing party 'is not required to try the issues until the term next ensuing that of' the state court when the cause was removed.
The rule cited by counsel does not prevent the court from entertaining motions to make up the issues when applied to by the parties. If the cause commenced in the state court 30 days before the next session of the circuit court, and is not at issue when removed, this rule gives until the fifth day of the term to make up the issues, and the cause then stands for trial. It applies to all cases removed and docketed on the first day of the term, where neither party had previously applied to the court to proceed in the case.
The defendant will file his answer within five days from this day, to-wit, April 24, 1884; and it is so ordered.