By the Court,
In this proceeding an application is made for a peremрtory writ of mandate to be directed to Benjamin Curler as Judge of the
Jonеs brought an action in said Court against the defendant— the relator herein — alleged to be “ a mining corporation, organized and existing under аnd by virtue of the corporate laws of the State of New York, and engaged in .such mining business in this State,” to recover, with damages laid at five thousаnd dollars, certain mining ground in said county. The defendant petitioned the Cоurt to transfer the cause to the Circuit Court of the United States in and for the District of Nevada, for trial, filing with the petition a bond conditioned according to law, as in such cases made and provided. The motion was heard on the complaint, petition, answer to the petition, and affidavits on behalf of the respective parties to the aсtion. Upon the showing made, the District Court refused to transfer the causе, whereupon the defendant, the relator herein, applied tо this Court for a mandatory writ for the purpose before stated. On filing the рetition, we permitted, as is the usual practice in such procеedings, the writ to issue in the alternative form, without passing upon any question аrising in the case, leaving all such to be determined in the final disposition of it. In obedience to such alternative writ, the respondent appeared by counsel and moved to dismiss the writ on a number of grounds, one оf which was that the remedy of relator to correct any erroneous ruling of the Court below in the matter of such application, was by appeal from the order refusing to transfer the cause. We at once held, and have no reason to change the views then exрressed from the bench, that a direct appeal from such ordеr would not lie. The appeal allowed by Sec. 285 of the Practiсe Act, from an order granting or refusing to change the place of trial, “ does not apply to cases like this, where the application is to remove the cause from a State to a Federal Court.” Under a like’statute it has been so ruled in California. (Hopper v. Kalman,
But notwithstanding counsel placed his motion on wrong grounds,
It is true that a few cases are found where mandamus is- held to be a proper remedy to compel the removal of a cause from the State Court, but the most general rulе, and the one we think the correct one, is against it. Indeed, the statute governing this character of writ in this State, (Practice Act, Sec. 415) seems to forbid the issuance of such writ where there is a plain, speedy, аnd adequate remedy in the ordinary course of law. If the moving party in the Court below has been aggrieved by the order refusing to transfer the cause, the remedy for it is, in legal contemplation, plain, speedy, and adequate by appeal from the final judgment, accompanied with a proper statement or bill of exceptions. (Francisco v. The Manhattan Life Insurance Company [No. 1,641] Cal. Sup. Court, October Term, 1868.)
The motion to dismiss the writ is sustained.