209 F. 626 | D. Or. | 1913
Section 29 of the Judicial Code provides that written notice of a petition and bond for removal of an action from a state court shall be given the adverse party prior to the filing of the same. This requirement is one of substance, and if not complied with, the federal court cannot ignore it and retain jurisdiction if seasonable objection is made. Wanner v. Bissinger & Co., decided by this court on September 29, 1913; Goins v. Southern Pac. Co. (D. C.) 198 Fed. 432; United States v. Sessions, 205 Fed. 502, 123 C. C. A. 570.
The statute does not prescribe the length of time the notice shall, be given prior to the filing of the petition and bond, but only that it shall be prior thereto. Before the adoption of the Judicial Code no notice of a removal application was necessary, but upon the filing of proper
The record is that on the 12th day of November, 1913, the attorney for the plaintiff accepted in writing service of the petition for removal, reserving, however, the right to remand, and on the same day the petition and bond were filed in the state court and the order of removal made. No prior written notice of intention to file such petition and bond, or of the time when they would be filed or the application for an order of removal would be made, was given the plaintiff. If such a, proceeding is a compliance with the requirements of the removal act, then Congress accomplished nothing of substance by inserting the provision requiring prior written notice. As said by the Court of Appeals of the Sixth Circuit, in United States v. Sessions, supra:
“Tlie provision is eitlier mandatory or inoperative. Tliere is no middle course. The mandate must be carried into effect or be practically destroyed.”
It follows that the motion to remand must be allowed, and it is so. ordered.