Booki v. Pullman Co.
| Decision Date | 31 December 1914 |
| Citation | 220 Mass. 71,107 N.E. 418 |
| Parties | BOOKI v. PULLMAN CO. |
| Court | United States State Supreme Judicial Court of Massachusetts Supreme Court |
Chas Toye and Jas. H. Baldwin, both of Boston, for appellant.
Benj. N. Johnson and Arthur F. Johnson, both of Boston, for appellee.
This is an appeal from an order of the superior court accepting the defendant's petition, approving its bond and ordering this case removed to the United States District Court.
It is not disputed that the petition alleges every jurisdictional fact, other than that of notice, required by the Judicial Code (36 U.S. St. at Large, c. 231), and that, if the absence of the allegation of notice be disregarded, it became the duty of the court, if the petition was accompanied by a proper bond (as it was), 'to accept said petition and bond and proceed no further in' the suit. Nor in such case is it denied that it was the further duty of the court to make a formal order for removal; indeed if it failed so to do, the cause nevertheless stood removed. Wabash Western Ry. v. Brow, 164 U.S. 272, 17 S.Ct 126, 41 L.Ed. 431. Before the passage of the Code the court proceeded ex parte; its duties were largely ministerial, and only in the smallest sense of the term judicial. Goins v Southern Pacific Co. (D. C.) 198 Fed 432. It had the duty of passing upon the formal appearance of the record and nothing whatsoever to do with defects, irregularities or the truth of the facts alleged. To be sure it could retain the case if the record did not seem to it to disclose a case for removal, but it did this at the peril of having its judgment set aside as erroneous by the Supreme Court of the United States. Stone v. South Carolina, 117 U.S. 430, 6 S.Ct. 799, 29 L.Ed. 962.
The Judicial Code re-enacted, with some formal changes not material to this issue, the then existing law, but after stating that 'it shall * * * be the duty of the state court to accept said petition and bond and proceed no further in such suit,' added these words: 'Written notice of said petition and bond for removal shall be given the adverse party or parties prior to filing the same.'
The plaintiff's complaint is that it is nowhere alleged in the defendant's petition that such a notice was given him before the filing of the petition. He does not in terms charge that written notice was not in fact given, but that the defendant has not set out in his petition, in any form of words, that it has been given.
Inadvertent failure to allege performance of a statutory condition, due to accident, mistake or waiver, is made to stand on the same footing as willful and intentional noncompliance with the provision of the act. If...
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