16 F. Cas. 310 | U.S. Circuit Court for the District of Eastern Pennsylvania | 1877
(orally). It must always appear upon the record that the United States court has jurisdiction. This is not the ease here, since it does not appear that the controversy is between citizens of different states. The inference contended for by the defendant cannot be made. For all that appears, the plaintiff may be a citizen of Connecticut or a citizen of a territory, in each one of which cases the cause would have been improperly removed. Apart from this, the bond filed is fatally defective. The act of 1875, supra, certainly taires the place of all former acts in the requirements which it makes for the removal of all causes to which it is applicable. The language of the act is: “Section 2. That in any suit * * * in which there shall be controversy between citizens of different states * * * either party may remove said suit into the circuit court of the United States for the proper district.” “Section. 3 * * * That whenever either party entitled to remove any suit mentioned in the next preceding section shall desire to remove such suit from a state court to the circuit court of the United States, he or they may make and file a petition in such suit, * * * and shall make and file therewith a bond * * * for his entering in such circuit court on the first day of its then next session a copy of the record in such suit, and for paying all costs that may be awarded by such circuit court, if such court shall hold that such suit was wrongfully or improperly removed thereto.” The requirements as to the nature of the bond, therefore, extend to all cases mentioned in the second section, and to that extent, at least, this act repeals all prior acts upon this subject The filing of the bond conditioned as required by the act, is a condition precedent to the removal of the cause to this court. If the required bond has not been filed, this court has no jurisdiction; though it belongs to it exclusively, and not to the state court, to decide that fact.
Nor has the plaintiff been guilty of such laches as prevents him from having the cause remanded. This court cannot proceed unless it has jurisdiction, whatever the conduct of the parties may have been. Moreover, the plaintiff could have done nothing further than what has been done, except that he might have made this motion at the last October session instead of now. and by this the defendant has not been injured. The fact that the plaintiff did not oppose the removal from the state court, was not laches upon his part, since that court had no jurisdiction to decide the right of removal, that being wholly within the jurisdiction of this court.
For these reasons the rule nisi to remove is made absolute, and the cause is ordered to be remanded, the defendant to pay all the costs of the removal of the case to this court and of the remanding of the suit to the state court