76 Wis. 439 | Wis. | 1890
With its answer the defendant’s attorney filed in the office of the clerk of the circuit court, in vacation* on August 2, 1889, a petition and bond for the removal of this cause to the circuit court of the United States-
Prom that order this appeal is taken. And the question is, Could the defendant waive and renounce its right to remove the cause to the United -States court, and consent to the cause proceeding in the state court. We confess we are unable to perceive any ground or reason for holding that it could not waive such a legal right established in its favor. The right of removal to' a federal court only concerns the defendant. It involves no principle of public policy that we can see, and we are unable to see an}? sound reason for saying that the defendant could not waive its right to such removal. It is not like the case of Morse v.
A question has sometí mes > been raised whether a party, by contesting a cause in the state court after it has erroneously refused to grant the application for removal, wmives any right*. The supreme court has held that, if a state-court wrongfully refuses to give up its jurisdiction on a petition for a removal, and forces a part}1- to trial, he loses none of his rights by remaining and contesting the case on its merits. Railroad Co. v. Koontz, 104 U. S. 5. This seems to be holding to a somewhat different rule from the one which is often applied, that a party, by his subsequent conduct in the case, waives his right to insist upon an error against
It is said that, as a proper petition and bond had been filed, entitling the defendant to a removal, the rightful jurisdiction of the -state court over, the cause was at an end, and that no further proceedings could properly be had in that court, not even to grant the request that its jurisdiction should be restored. We cannot adopt that view of the law. Consent would surely restore the jurisdiction of the state court over the cause, and place it in the same position it would have stood if the defendant had omitted to exercise its right to remove it to a federal court. It seems to us this proposition cannot be successfully controverted. There had been no transcript of the record sent to the federal court, but it remained on file in the state court. The defendant, under the circumstances, did all it could to actually restore to the latter, court full jurisdiction oyer the cause, and the court should have granted its application to withdraw its petition for a removal, which had been inadvertently filed. It was not in the power of the defendant to do anything more to restore the jurisdiction of the state court over the cause, and we have no doubt but the jurisdiction of that court was as complete over it as though no attempt had been made to transfer the suit to the federal
A question was suggested on the argument whether the order affected any substantial right, so as to make it appeal-able. The circuit court denied the application to withdraw the petition, on the ground that it had no jurisdiction to grant it. The learned circuit court undoubtedly held that the cause had been transferred to the federal court, and that it had no authority to proceed or act in the matter. Its view would have been correct had not its jurisdiction been i-estored by the acts of the defendant. But the fact that the court entertained the view that the cause had been removed to the federal court would, of course, prevent the defendant from taking any further steps to dispose of it. It was of the greatest moment to the parties to know whether the state court could proceed and try the case, and the decision that it had no power to do so necessarily involved the question of the very existence of the action in that court, and this further necessarily involved the merits, for if what the defendant had done operated to divest the federal court of jurisdiction and restore that of the state court, it was of importance for the defendant to know certainly what court it was in. We therefore think that the order affected a substantial right, and was appealable. Akerly v. Vilas, 24 Wis. 165; McLeod v. Bertschy, 33 Wis. 176.
By the Court.— The order of the circuit court is reversed, and the cause is remanded for further proceedings according to this opinion.