50 F. 851 | U.S. Circuit Court for the District of Massachusetts | 1892
The jurisdiction to entertain this bill appears to be sustained by French v. Hay 22 Wall. 250, as applied in Railroad Co. v. Ford, 35 Fed. Rep. 170. The jurisdiction is also recognized in Wagner v. Drake, 31 Fed. Rep. 849. The existing statutes of removal contain two important features, one of which did not before exist, and the other was not previously so emphasized as it now is. The state court has no jurisdiction to determine questions of fact arising on petitions for removal. The United States circuit court has final jurisdiction in relation thereto. Railroad Co. v. Daughtry, 138 U. S. 298, 11 Sup. Ct. Rep. 306. If a motion to remand is heard in a United States circuit court, and there allowed, the result is conclusive in all courts, and terminates the con-troversj as to the right or regularity of removal. In re Coe, 49 Fed. Rep. 481. The pending case sought to be removed presents a controversy especially appropriate for the federal courts, and it will probably reach them in some form at some stage. Bock v. Perkins, 139 U. S. 628, 11 Sup. Ct. Rep. 677. It is also evident the district attorney proceeded in good faith, and in accordance with his official duty, in asking a removal. Under these circumstances, it can hardly be doubted that, if the attention of the state courtis carefully brought to the foregoing'considerations, it will stay proceedings until the plaintiff in the state court has used reasonable efforts to secure a decision of the United States circuit court on a motion to remand. Certainly it must be presumed that a single judge of the state courts is as capable as a single judge of the United States courts of weighing the great inconvenience and unnecessary expense of double litigation when it can be avoided. Therefore, as, in this instance, the right of a single defendant to remove is in great doubt, notwithstanding the other defendants have been defaulted, (Putnam v. Ingraham, 114 U. S. 57, 5 Sup. Ct. Rep. 746, and Hax v. Caspar, 31 Fed. Rep. 499,) and as the question presented to me is wholly one of inconvenience and not immoderate expense, whatever I might feel myself required to do if the right of removal seemed to me clear, or under more serious circumstances, I do not perceive that I am now justified in granting the injunc