Redmond v. Russell

12 Johns. 153 | N.Y. Sup. Ct. | 1815

Spencer, J.

To entitle a citizen of another state, sued here by a citizen of this state, to a removal of the cause to the circuit court of the United States, the act of congress (1 vol. p. 56. s. 12.) requires that the defendant shall, at the time of entering Ms appearance in the state court, file a petition for the removal of the cause for trial, into the next circuit court, &c. &c.. In this case, the .defendant filed special bail on the 3d of September last, and on the 6th of that month, gave notice to the plaintiff, of his intention to apply for the removal of the cause, and subsequently obtained an order to stay proceedings, until the application could be made; and in the last term of this court, he moved for the removal of the cause ; then, for the first time, filing his petition»

This is not a case in'which the comity of the' court is to be exercised: if the defendant is not strictly entitled to have his Ccip§@ removed, we' are bound t© maintain our jurisdiction.—The, plaintiff has as strong a claim to have his cause retained here, as the defendant can have to remove it. The whole. question turns'upon the point, when did the défendantenter his appearance?, Upon a copias, or other process against the person, the only mode in which the defendant is said to appear, is by putting in common or special bail ; and this appearance is necessary in all cases; for. the defendant must.be in court before his attorney can plead, Or take any steps in bis behalf; nor can the plaintiff proceed against a defendant, except by declaring conditionally, Until he has appeared by filing common or special bail.. ' ■ -/ . E1 ■

The manner of a defendant’s appearing in the courts of the several states, is undoubtedly variant; but whenever that act is* done, which, according to the practice, and rules of the state courts, respectively, amounts to • entering an appearance in the court,, where- the suit is 'brought;. then, and at the time of entering such appearance, the petition for the removal of the cause, must be .filed. The entering^ ah appearance, and filing the petition, aré,to be simultaneous acts; and the act of congress does not contemplate, that the court shall be then in session: we caniiot suppose, that"congress were not aware, that these minis ter iaiacts might be done in the vacation out ■of term. ■: 1 ■■ 'V

The requirement, that the petition for the removal. of, a cause, should be filed at the time of entering the appearance, was. intended, not only to, .put the- defendant to k prompt election of his. tribunal ; but to give the. opposite party early notice of his intention. "

Believing that there /can be np doubt, according to. the practice and course of this court, that filing the special bail, in this cause,. on the 3d of September,, was entering the defendant’s, appéaraheé," I am bound to say, he Ms lost his right to a removal of. the cause, by neglecting then to file , his petition, aGCOrding -to.; the act of congress ; and, that^ consequently, we cannot now allow the cause to-be removed^

Tates,. J. and Peatt,/J, concurred.'

Thompson, Ch. J.

I cannot concur in the construction which has been given to the act of congress. If this was:to be considered a mere question of practice, and to be applied prospec.tively, it would be matter of no great importance how it was settled. But to apply this construction to the present case, is, I conceive, against the former practice of the court, and depriving the defendant of a right given by the statute. The appearance, which the statute speaks of, on the entering of which the petition for the removal of the cause is to be filed, must be an appearance in open court, and not the mere entering of bail; for it is to be accompanied with other acts; which, cannot be done in vacation, but must be done by the court. He is to file a petition, and offer good and sufficient security for entering his cause in the circuit court, and then appearing and entering special bail, if special bail wag originally requisite therein, of the sufficiency of which surety the court must judge. These are all considered by the statute as simultaneous acts, and, of course, to be done in open court. The mere act of filing a petition in the clerk’s office, could avail nothing. It would not stop proceedings in the state court, nor would the plaintiff be bound to take notice of it; and the statute does not require notice to be given. Under the construction now given to the statute, when the defendant endorses his appearance on the writ, or the plaintiff files common bail for him, he cannot know when to file his petition; for his appearance is entered by his adversary, and he may, by surprise, be precluded from removing his cause. In my opinion, therefore, the motion ought to be granted.

Yah Ness, J. was of the same opinion.

Motion denied.