Woolridge v. McKenna
Citation | 8 F. 650 |
Parties | WOOLRIDGE, Assignee, etc., v. McKENNA and others. |
Decision Date | 22 August 1881 |
Court | U.S. District Court — Western District of Tennessee |
Metcalf & Walker, for the motion.
W. M Randolph, contra.
The first ground of the motion to remand was because the transcript from the state court was not filed until the second day of the next succeeding term of the federal court. In explanation of this delay, the attorney for the petitioner filed an affidavit, the substantial part of which is in the following words:
The second ground for the motion was that the petition for removal shows upon the face of it that the case is not removable:
(1) Because neither a next friend or guardian ad litem of a minor defendant can remove the case, or enter an appearance in the federal court in compliance with the condition of the bond for removal; nor can the father of the said minor, as such father, do so. (2) Because all the parties-- plaintiff and defendant-- are shown to be citizens of Tennessee, and the allegation of the petition to the contrary is shown by the record to be untrue.
The facts appearing by the record are that the plaintiff, who is a citizen of Tennessee, filed this bill as assignee in bankruptcy of Robert McKenna, who is also a citizen of Tennessee, against the said bankrupt and his daughter, Maud B. McKenna, a minor, who is alleged in the bill, according to the state practice, to be 'a resident of Shelby county, Tennessee, as are the other defendants, all being likewise citizens of Tennessee. The object of the bill is to set aside alleged fraudulent conveyances of land in Shelby county, Tennessee, made by the bankrupt for the benefit of his wife and children, all of whom have died since the conveyances except this defendant, Maud B. McKenna. The petition for removal purports to be 'the petition of Maud B. McKenna, by her father and next friend, Robert McKenna,' and is signed and sworn to by him. It states that she is 'a citizen and resident of Louisville, in the state of Kentucky, and that all the other parties to this suit, both plaintiff and defendants, are citizens and residents of the state of Tennessee,' and contains all other necessary jurisdictional averments. The bond for removal is that of Robert McKenna himself, and is conditioned that he will, 'as next friend of Maud B. McKenna, on the first day of the next session, etc., enter therein a copy of the record of said suit, and appear therein and enter special bail,' etc., etc.
Since the transcript was filed in this court the defendant Robert McKenna, in aid of his petition for removal, and in opposition to the motion to remand, has filed the following affidavit, viz:
There has, also, since the transcript was filed, been entered in the rule-day order book of this court the following appearance of Robert McKenna, as guardian of the defendant Maud B. McKenna; and the letters of guardianship have been filed, showing that he has, since the suit was commenced, and since its removal here, been appointed guardian of the minor by the proper court in Tennessee, viz.:
HAMMOND, D.J.
The affidavit of the attorney for the petitioner shows that the omission to file the transcript on the first day of the next session of this court was an inadvertence. It was filed on the next or second day of the session, and no injury could possibly have resulted to the other parties by the failure to comply with the letter of the statute. It would be therefore, a very harsh rule, and entirely at variance with the analogies of the practice in this state, to hold that a slip like that had defeated the jurisdiction of this court and destroyed the efficacy of this statute. I have been much perplexed by the conflict of opinion shown by the very few cases on the subject in the different circuits, and more by the very strict rulings of the supreme court in the construction of the somewhat analogous statutes regulating the jurisdiction of that tribunal on writs of error and appeal. The principle involved depends upon a solution of the question, whether the statute is directory or imperative, and this is always a question of delicacy and the utmost difficulty; particularly so, since there is well-grounded complaint that the courts are too ready on one pretext or another to dispense with the command of the legislature by an application of this rule of construction. I fully agree with all that the supreme court of Mississippi said on this subject in Koch v. Bridges, 45 Miss. 247, 258, and recognize the danger of substituting the caprice or will of the judge for the command of the statute. Nevertheless, there is no doubt whatever that from the beginning of our law the courts have exercised the power of departing from the letter of the statute to attain the object of the legislature in passing it. The Statute of Merton, c. 3, required a certain character of case to be tried before the first jury, but it was construed that where there was no first jury it might be tried before the others; 'for the statute (albeit it be penal) shall not be so literally expounded that if it cannot be tried per primos juratores, that it shall not be tried...
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