14 F. 370 | U.S. Circuit Court for the District of Colorado | 1882
This action was brought in the District Court of Arapahoe county on the 27th day of May last, to recover the sum of $4,500. Concurrently with the summons, plaintiffs took out a writ of attachment which was levied on defendants’ goods, and together with the summons, was served on defendants on that day. It is conceded that plaintiffs then were and still are citizens and residents of the State of New York, and that at the time of bringing the suit, no bond for costs was filed, as required by Chapter XX of the Revised Statutes of the State. Two days later, and on the 29th day of the same month, such a bond was filed and approved by the clerk; and .on the same day, but whether before or after the filing of- the cost bond, is not shown, defendants entered a motion to dismiss for want of a bond. On the 1st of June following the cause was removed into this Court on plaintiffs’ petition, setting up the necessary facts as to the citizenship of the parties; and defendants, not having otherwise appeared, now urge their motion before the Court.
The language of the act cannot be misinterpreted. After providing in the first section that security shall be given in a form which is prescribed, the first clause of the second section is as follows:
“ If any such action shall be commenced without filing such instrument of writing,, the Court, on motion, shall dismiss the same and the attorney for the plaintiff shall pay all costs accruing thereon.”
The statute of Indiana, which was interpreted in Cox v. Hunt, 1 Blackford, 146, contained no such direction. In the absence of such provision, it may be reasonable to say that Ihe defeiidant should be satisfied with security given when it is demanded. With such a provision in the law, it must be apparent that nothing short of absolute denial of the authority of the Legislature can prevail against it. Nor is the bond for costs under a statute of this kind an element of jurisdiction. By failing to object in apt time, the defendant may waive it, and the Court will have authority to proceed without it. People v. Cloud, 50 Ills., 444.
But the power of the Court to proceed in a case where no objection is raised by defendant, is not the matter in issue. That question is, whether, upon motion made in due time,by defendant, the statute shall be enforced, and upon that there is no room for debate.
It is contended, however, that the motion to dismiss cannot be maintained in this Court, inasmuch as the act of Congress of 1875 declares that the action shall stand in this Court as if originally brought therein; and no bond for costs is required of non-residents or others in suits brought in this Court. The language of section 3, of the act of 1875 on that subject, is as follows:
“ And the said copy being entered as aforesaid in said Circuit Court of the United States, the cause shall then proceed in*162 the same manner as if it had been originally commenced in the said Circuit Court.”
It would be most extraordinary to regard this clause as depriving either party of any substantial right which could have been asserted in the State Court, if the cause had remained in that Court. In a case of defective service of process and after removal by plaintiff, it will hardly be claimed that the defend-ar vill be precluded from objecting to the service by the re-.rement that “ the cause shall proceed ”—obviously the in-jnt of the statute is to confer on the Circuit Court, in respect to such cases, as full and ample authority as is held in cases brought in that Court. But this is not saying that a question which properly [arose in the State Court before the removal of the cause, and which remains undetermined, shall not be considered in the Circuit Court.
The manner of bringing the suit, and its progress while it remained in the State Court, was subject to the law of the. State, which may be administered here as well as in the State Court. And the circumstance that the question could not have been raised in this Court if the suit had been brought here, is of no importance. The paragraph cited from the act of 1875 is jurisdictional to the Court and not a limitation of the rights of parties.
In the Supreme Court and in this Court it has been held that in a cause removed from a State Court to a Federal Court the latter begins where the former leaves off. Duncan v. Gegan, 11 Otto, 810; Brooks v. Farwell, 5 McCrary, 220.
We take the cause as we find it. Whatever has been determined in the State Court is accepted in the Circuit Court as conclusively settled, subject to the jurisdiction of the Supreme Court to review it on writ of error or appeal. Whatever remains undetermined at the time of the removal is to be decided in the Circuit Court according to our own modes of proceeding, but with full recognition of all substantial rights. The motion to dismiss was filed in the District Court of the State in due time, and by the removal of the cause into this Court the plaintiffs could not defeat either the right to have the motion heard, or the effect of it when it should be heard. If defendants had made the application to remove perhaps the
