21 S.E.2d 244 | Ga. Ct. App. | 1942
On removal to a Federal court, as required by an act of Congress appearing in U.S.C.A., Title 28, § 72, of a case pending in a State court, where the law requires the accrued costs in the State court to be paid, the party removing the case is liable for the costs of placing on the writ book or docket of the State court the existing pleadings of file in the office of the clerk of the State court, notwithstanding at the time the clerk has not in fact placed such pleadings on the writ book or docket.
It is provided in Code § 24-2715 that the clerks of the superior courts and city courts must record immediately in a book of final record every part of the pleadings in every case. It is provided in paragraph 7 of that section that the clerk shall not be punished for contempt until after the paper or papers required to be recorded have been filed for three months. It appears that the suits which had been filed in the city court of Americus against the plaintiffs were filed on August 25, 1941, and that the order of removal of the cases to the Federal court was passed on September 11, 1941. It being necessary to pay the court costs as a condition precedent to the removal of the cases to the Federal court, it necessarily follows that the court costs were paid within a period of three months after the filing of the suits in the city court of Americus. The clerk therefore, at the time of the payment of the costs to him by Reeve Brothers, was not in a situation where he was punishable for contempt for any failure to have recorded the pleadings in the writ book. It does not appear that the clerk was in any way derelict in the performance of whatever duties may have rested on him to record the pleadings as required by the Code section cited.
It is contended by the plaintiffs that after the order of removal of the cases to the Federal court, which was before any record had *516
been made by the clerk of the pleadings in the writ book, no jurisdiction over the cases in the city court of Americus attached, and that the clerk, for this reason, had no right or power to record the pleadings in the writ book, and therefore could not legally collect from Reeve Brothers the costs for such record. The Code section referred to, which provides for the record of the pleadings in the writ book, expressly provides: "The provisions of this section shall not apply to cases dismissed and settled before said record is made." Applying the maxim expressio unius exclusio est alterius, which means that where certain things are expressly required others are excluded, Code § 24-2715 should be construed as providing that only where a case is dismissed or settled, and thereby finally terminated, and not otherwise, would the clerk be excused from recording the pleadings in the writ book. When a case is removed from the State court to the Federal court, on an order of the State court, it is not necessarily finally settled or disposed of as respects the State court. The cases may possibly afterwards be remanded by the Federal court to the State court, and they would then resume their positions in the State court as originally filed therein together with all the pleadings. Queen Insurance Co. v.Peters,
The requisite costs of the recording of the cases on the writ book in the city court of Americus were legally collectible by the clerk on the removal of the cases to the Federal court, notwithstanding at the time of the removal the clerk had not in fact recorded the pleadings on the writ book. This ruling applies only as respects pleadings actually filed in the city court of Americus before the court lost jurisdiction on removal to the Federal court. No papers *517
could have been legally filed in the city court after the removal of the cases, and no costs of recording such papers could be exacted by the clerk. Rich v. Andrews,
The act of Congress relating to the removal of causes from State courts to Federal courts, as appears in U.S.C.A., Title 28, § 72, provides that where the removal is instigated in the State court a certified copy of the proceedings shall be transmitted to the Federal court. It therefore appears that even after the removal of the cases the original papers are still in the possession of the clerk of the State court, and he has access to them for the purpose of recording them in the writ book.
The court did not err in refusing to grant the rule prayed for.
Judgment affirmed. Sutton and Felton, JJ., concur.