| U.S. Circuit Court for the Northern District of Illnois | Jun 15, 1871
In considering this motion, this court has deemed it first in importance to inquire whether it has acquired jurisdiction of said cause by the steps which have been taken for its removal.from the state court. By the act of March 2, 1807, it is provided: “That where a suit is now pending, or may hereafter be brought in any
By the act of 1789, providing for the removal of suits from the state courts to the federal courts, the application for the removal must be made by the defendant at the time of entering his appearance in the state court, and then only by the defendant. But as this case has progressed to a stage far beyond the entry of the appearance of the defendants, it is obvious that if removed at all, it must be removed under the provisions of the act of 1867; and the act of 1807 only autuorizes removals upon affidavit and petition showing the existence of such prejudice or local influence as will not secure to the party seeking the removal a fair trial in the state court. It is well known as a part of the legislative and judicial history of the country, that this latter statute -was passed to meet certain conditions and difficulties which ^au arisen out of the late civil war. It is exceptional in its provisions, and it seems to us its application should not be extended beyond its letter and the class of cases which are strictly within its provisions. The statute itself provides for the filing of an affidavit and petition stating the existence of certain facts, and unless the existence of those facts appear in the record in the manner provided by the statute, it seems to us the right to a removal does not arise, and this court, it seems to us, ought not to entertain jurisdiction of a case from the state court, unless the record shows that the conditions precedent required by the statute have been complied with.
The stipulation in this case does not even by agreement of parties admit the existence of the jurisdictional facts which authorize the change of forum, even if it were allowable that the parties should stipulate as to the existence of those facts, instead of verifying their existence by affidavit as required. But without stopping to discuss the point as to whether parties might stipulate as to the existence of those facts, this court is of the opinion that the practice should not be encouraged or allowed of removing cases from the state courts by stipulation. We think that comity to the state court which has acquired jurisdiction over the persons and subject-matter in controversy, requires that the federal courts should refuse to take’ cognizance of cases removed therefrom, unless such removal is accomplished in the way pointed out by the act of congress.
We also doubt whether this case has not already progressed to such stage in the state court as to be beyond the purview and operation of the act of 1867. It|Seems to have passed toa final decree. The court has adjudicated upon the questions made by the bill and cross-bill, and has awarded to the complainants the relief they respectively sought, and the decree seems to have been in process of execution. We do not, however, feel called upon to decide the case upon that point, as there is another, and, to us, still more fatal objection to our entertaining jurisdiction in this case.
The record shows that the principal defendant in the original bill and in Mrs. Lawrence’s cross-bill,' is Henry W. Kingsbury, a minor. He is the owner of the fee in the property sought to be affected by the bill, and it is out of his estate that the complainants in the bill and cross-bill seek their respective allotments of dower. He is incapable of consenting to the change of forum in his case. The circuit court of Cook county has acquired jurisdiction of his person and property in these proceedings, and we do not deem it competent for his guardian ad litem, or any other person for him, to consent or stipulate for a removal of the case from that court into this court in his behalf.
It was said upon argument that inasmuch as it was possible for Mrs. Kingsbury and Mrs. Lawrence to dismiss their proceedings in the state court, and, if the proper facts in regard to the residence of the parties existed, bring an original suit against the minor defendant in this court, involving the same subject-matter, it was, therefore, competent for those having charge of his interests to stipulate for the removal of the case bodily into this court. But the obvious answer to that suggestion is, that in the event of bringing an original suit against the minor in this court, he could only be brought in as a defendant by service of process upon him in the manner pointed out by law, and that any waiver of service of process and entry of his .appearance in this court by attorney or by guardian ad litem would be void and totally inoperative.
Entertaining these views, which are fully