48 F. 337 | U.S. Circuit Court for the District of Northern New York | 1891
This is a motion by the plaintiff to remand this action to the state court from which it originated. Tho suit was brought in tho supreme court of the state of New York, Niagara county being specified in the complaint as the place of trial. Before the expiration of the time to plead or answer to the complaint, the defendant presented a petition, accompanied by a bond properly conditioned and with good and sufficient security, at a term of the supreme court then in session in the county of Erie, and the justice presiding indorsed his acceptance upon the petition and bond. Thereupon the defendant filed the petition and bond with the clerk of the county of Erie. It is conceded by the plaintiff that the petition and bond were properly presented at tho term of the court in session in Erie county; but the plaintiff insists that they should have been filed with the clerk of the county of Niagara; and the motion proceeds solely upon the ground that, because they have not been filed with the clerk of the county of Niagara, the action has not been properly removed. Tho clerks of the several counties of this state are clerks of the supreme court within their respective counties; and the clerk of the county of Niagara is the custodian of the records in all suits in the supreme court the venue of which is laid in that county. Section 3 of tho act of March 3, 1875, as amended by the act of March 8, 1887, provides that “whenever any party entitled to remove any suit * * * may desire to remove such suit from the state court to the circuit court of the United. States, he may make and file a petition in such suit in such state court, ' * * * and shall make and file therewith a bond, with good and sufficient surety,” and “'it shall then be the duty of said state court to accept said petition and bond, and proceed no further in such suit.” The statute requires the bond to bo conditioned for the entering by the removing party in such circuit court, on tho first day of its then next session, of a copy of the record in such suit. Section 7 provides that if the clerk of
It is also apparent that, unless the petition and bond .are filed by the removing party in the office of the clerk of the county of the venue, neither the opposite party nor the state court would have any formal or adequate notice of the removal of the suit, and of the consequent inability to proceed further in the state court. The statute does not require any notice of the proceeding to be given by the removing party to the adverse party, except bj^ the filing of the petition and bond; and, in my judgment, notwithstanding recent opinions to'the contrary by judges whose views are entitled to great weight, it does not require the removing party to present his petition or bond to a judge, either in vacation or in open court, but is satisfied when he files them with the official custodian of the records of the court. The statute requires him to make and file a petition and bond “in the suit” in the state court. It does not, in terms, require him to make any other presentation of them to the court; and if he moves the consideration of the court, or of a judge, upon them, his rights are not enlarged or abridged by the action of the court or judge. The statute requires the state court to “accept” the petition and bond, and “proceed no further in the suit.” As is pointed out by Justice Field in Wilson v. Telegraph Co., 34 Fed. Rep. 561, no order of the state court accepting them is contemplated to transfer jurisdiction of the action. As he says:
“The denial by the state court of a petition in no respect affects the jurisdiction of the circuit court of the United States, if the action is removable, and the bond offered such as the statute requires. The statute makes the removal upon the filing of the petition with the necessary bond.”
If a stale court declines to accept a sufficient bond, and erroneously decides it to be insufficient, the removal is effected nevertheless, and its jurisdiction ceases. Removal Cases, 100 U. S. 472. The state court is not prohibited from proceeding further in the suit unless the petition and bond are insufficient to entitle the application to a removal; consequently it is at liberty to decide that the petition does not show a removable cause, or is insufficient upon its face, or that the bond is insufficient. If it decides correctly, it does not lose jurisdiction, and can proceed, but its erroneous decision cannot impair the jurisdiction of the circuit court. Crehore v. Railroad Co., 131 U. S. 243, 9 Sup. Ct. Rep. 692. Certain 5y it is the decorous practice for the removing party to present his petition and bond to the judge of the state court, and obtain