Scott v. Otis, 21 F. Cas. 846

Scott v. Otis

21 F. Cas. 846 | U.S. Circuit Court for the District of Iowa | 1877

DILLON, Circuit Judge.

The act under which this cause was attempted to be removed (Rev. St. § 639, subd. 3) requires the petition and affidavit for the removal to be filed “in the state court.” And “in order to such removal the petitioner must at the time of filing his petition therefor, offer in said state court, good and sufficient surety,” etc. “It shall thereupon *847toe the duty of the state court to accept the surety and to proceed no further in the cause against the petitioner.” Unlike the act of March 3, 1875 [18 Stat. 470], the statute under which the removal was here attempted contains no provision authorizing the petition for the transfer, to be filed in vacation. It is our opinion that the filing in vacation of the petition, and affidavit and bond for the removal of this cause, did not have the effect to divest the jurisdiction of the state court, or that of the referee under the order of reference. The precise point presented is, whether under Rev. St. § (539, the removal of a cause can be effected by a petition and bond filed in the clerk’s office in vacation, without any action of the state court. We hold that it cannot.

Under the statutes of Iowa, courts act only in term, and judges have only a few enumerated powers which can be exercised in vacation. “Upon any final adjournment of the court all business not otherwise disposed of, stands continued generally” until the next term. Code, § 172. Without the consent of parties, the courts cannot decide cases in vacation (Id. § 183), or the judges do anything except to make provisional orders in specified cases. Judges in this state cannot, in vacation, exercise the power of courts in term. The act of congress (Rev. St. § 639) requires the petition and bond to be filed in the state court, and requires the state court to accept the surety, and to proceed no further in the cause. This implies action, to some extent, on the part of the state court, viz. to accept the surety if it be sufficient, and negatively the duty not to take any subsequent steps in the cause — action which in Iowa can only be taken by the court when acting as a court, that is, in term time. Whether the mere consent of the plaintiff to refer the cause, without more, waives the right of removal under Rev. St. § 639, subd. 3, as insisted by the defendant’s counsel, we need not determine. Hanover Nat. Bank v. Smith [Case No. 6,035]. I have doubt on this point and give no opinion upon it.

The case is not legally removed to this court, and is therefore dismissed. Case dismissed.