Amy v. Manning
| Decision Date | 26 February 1887 |
| Citation | 10 N.E. 737,144 Mass. 153 |
| Parties | AMY v. MANNING and another. |
| Court | United States State Supreme Judicial Court of Massachusetts Supreme Court |
C. Cowley, for defendant.
OPINIONThe plaintiff and defendant being citizens of different states and the amount in controversy being more than $500, exclusive of costs, the defendant had a constitutional right to remove the case to the United States circuit court. Const.U.S. art 3, § 2; Rev.St. U.S. § 639.
The petition for the removal of the action, and the bond, with sureties, were filed in due season. The fact that the bond had not been approved was immaterial. Dill. Rem. Causes, 60 62, 147; Desty, Rem. 143; Taylor v. Shew, 54 N.Y. 75; Empire T. Co. v. Richards, 88 Ill. 404.
The defendant's motion to dismiss, and his plea in abatement, were intended to put an end to the litigation at once, in furtherance of the public interest, as well as of the defendant's interest, and no right was waived or lost by making the same, notwithstanding they were finally overruled. Hanover Nat. Bank v. Smith, 13 Blatchf. 224.
The defendant's motion to continue, and the continuance granted thereon, expressly "reserving the defendant's right to remove," clearly show the defendant's purpose to have been to insist on having the case removed, if the motion to dismiss and the plea in abatement failed; and nothing afterwards done by the defendant shows any relinquishment of that purpose.
The court should have removed the action, and it erred in ruling "that the request came too late, and that the right to remove was waived." In such a case, "a waiver is an intentional relinquishment of a known right." But here the defendant had taken all steps required to assert his right to remove this action. West v. Platt, 127 Mass. 367, 372; Ex parte Turner, 3 Wall.Jr. 258; Stone v. Sargent, 129 Mass. 506, 511, 512; Stevens v. Richardson, 20 Blatchf. 58, 9 F. 191; Thorne v. Towanda T. Co., 15 Reporter, 549; Healy v. Prevost, 8 Reporter, 103; Carson v. Hyatt, 118 U.S. 279, 6 S.Ct. 1050.
In Home Ins. Co. v. Curtis, 32 Mich. 402, it was held, on the facts, that the right to remove had been waived.
The jurisdiction of the circuit court attaches as soon as it becomes the duty of the state court to proceed no further. Railroad Co. v. Koontz, 104 U.S. 5, 14, 15. The question of jurisdiction belongs to the federal court, and must be determined there. Dennistoun v. Draper, 5 Blatchf. 338; Taylor v. Rockefeller, 7 Cent.Law J. 349; Cobb v. Globe M.L. Co., 3 Hughes, 452. The question of jurisdiction is not waived when a state court asserts jurisdiction after a proper application for removal. Desty, Rem. 155, and cases cited. The petition being in due form and time, and accompanied by the required surety, and the case being manifestly within the scope of the statute of removals, the jurisdiction of the state court ceased eo instanti.
Presenting a petition initiates the removal, and leaves the state court no jurisdiction to take any proceedings, except to perfect that removal. New York Silk M. Co. v. Second Nat. Bank, 10 F. 204. No order for removal is necessary. The case is removed, though the order is not made. Nor is any order required accepting the petition and bond.
The entry of the record is not necessary for the transfer of the jurisdiction. Railroad Co. v. Koontz, ubi supra; Removal Cases, 100 U.S. 457. On the filing of the requisite petition and bond in a removable suit, the state court is divested of jurisdiction, and its subsequent orders are coram non judice, and its jurisdiction is not restored by any failure to file a transcript of the record in the circuit courts. Steam-ship Co. v. Tugman, 106 U.S. 118, 1 S.Ct. 58, and cases cited.
C.A. Prince, for plaintiff.
No proper petition for the removal of the case was ever filed. In considering this, it is important to bear in mind the effect of the filing of a proper petition for removal. Upon filing a petition in due form, with a proper bond, it becomes the duty of the state court to proceed no further in said suit. Its rightful jurisdiction ceases eo instanti. Dill. Rem. Causes, (3d Ed.) 92, and cases cited. To come within the meaning of the statute, the petition must be one which makes it the duty of the state court to proceed no further in the case. Insurance Co. v. Pechner, 95 U.S. 183, 186; Removal Cases, 100 U.S. 457. The jurisdiction of the state court is only ousted when the requirements of the statutes are complied with. Mahone v. Manchester & L.R. Corp., 111 Mass. 72-74. The petition did not call for an exercise by the state court of the duty imposed by the statute.
The mere filing of a proper petition and bond within the time prescribed by the statute does not complete the removal. Although no order for removal is necessary, (see Hatch v. Railroad Co., 6 Blatchf. 105,) it has uniformly been held that any court of this commonwealth, before declining the further exercise of jurisdiction over a case, must consider and determine whether, upon the papers and record before it, the petitioner is brought within the act of congress; and the ruling of a judge of the superior court and of the supreme court upon the question may be revised in the full bench of the supreme court upon a bill of exceptions and report of the judge. Stone v. Sargent, 129 Mass. 503-508. This doctrine has been recognized by the supreme court of the United States. Stone v. South Carolina, 117 U.S. 430, 6 S.Ct. 799. The fact that the statute prescribes that it is the duty of the state court to accept the bond, and "proceed no further" with the case, presupposes some action by the state court. It is absurd to suppose that the statute imposes upon the state court knowledge of all proceedings upon its record, and that it was bound to know immediately when a petition for removal was filed, and immediately act thereon. It seems, therefore, clear that a mere filing of the petition does not satisfy the requirements of the statute. In addition to the simple filing of the petition within the time prescribed, there must be a bringing of the petition to the notice of the court for action. If the statute was satisfied by a mere filing, it would be possible for a person to file his petition within the proper time, and not bring it to the attention of the court until after trial, and judgment, and then claim that it was removed. Something akin to this has been attempted by this defendant. See Railway Co. v. Ramsy, 22 Wall. 328. In order to secure the right of removal provided by statute, it was incumbent upon the petitioner not only to file his petition, but also to call it to the attention of the court within the proper time for action. See Removal Cases, ubi supra; Hanover Nat. Bank v. Smith, 13 Blatchf. 224; Home Ins. Co. v. Curtis, 32 Mich. 402. If the removal is perfected by a mere filing, it cannot possibly be waived by subsequent action. An application is not made until the court is actually applied to for action. Gas Co. v. International Financial Soc., 7 Ch.Div. 241. The proper time for filing and presenting the petition, under the decision of this court in New York Warehouse & Security Co. v. Loomis, 122 Mass. 431, was at the term at which the answer was filed. This, in the present case, was the October term, 1884; and, although the petition was filed at the time, it was not presented to the court until the January term, 1886. The petition was therefore never filed within the time prescribed by the statute.
As to waiver. It is well settled, as we have shown, that a party may waive the right to remove, by his subsequent conduct in the state court. Dill. Rem. Causes, (3d Ed.) § 84, p. 102. This the defendant clearly did. Granting that his petition could be filed in the manner done, to take effect after his motion to dismiss, and his plea in abatement had been heard and decided, he did not then act upon his petition, and took no steps to perfect his right until it was finally reached for trial. This was properly held by the presiding judge to be a waiver, (Hanover Nat. Bank v. Smith, ubi supra;) and came too late, (Watt v. White, 46 Tex. 338.)
We are unaffected by the reasons given by the judge for his ruling. The question is whether the judgment is correct, not whether the ground upon which it was given was correct. Davis v. Packard, 6 Pet. 41.
The bill of exceptions does not show that a bond with good and sufficient surety was filed. The plaintiff does not show a compliance with the statute. The state court may judge of the sufficiency of the bonds. Dill. Rem. Causes, (3d Ed.) p. 95, note 1, and cases cited.
This is an action of contract on four promissory notes, brought in the superior court, in which the damages are laid at $60,000. The writ is dated September 5, 1884, and was returnable to the October term, 1884, and was entered at that term. The plaintiff is described in the writ as "of the city county, and state of New York," and the defendant as "having his usual place of business in Boston, in said county" of Suffolk, in this commonwealth. This last description is not an allegation of citizenship. The defendant appeared specially, and on October 22, 1884, filed a motion to dismiss the action, on the ground that no legal service of the writ had been made upon him, and on November 6, 1884, he filed a plea in abatement alleging this, and other facts. "On December 29, 1884, the last day of the return-term, the defendant filed a petition, together with a bond with sureties, for the removal of this action to the circuit court of the United States for the district of Massachusetts, on the ground that the plaintiff was and is a citizen of New York, and he himself a citizen of Massachusetts." Both the petition and bond appear to be in proper form; and, although the bond had not been...
To continue reading
Request your trial
-
Manning v. Amy
...court for the commonwealth of Massachusetts on exceptions taken by the defendant. Those exceptions were overruled by that court, (144 Mass. 153, 10 N. E. Rep. 737,) the rescript being received by the superior court at its January term, 1887. A motion for a new trial on the ground of newly-d......