Carswell v. Schley

• Citation: 59 Ga. 17
• Parties: John W. Carswell, executor, plaintiff in error. v. Henry J. Schley et al., defendants in error.
• Decision Date: 31 August 1877
• Court: Supreme Court of Georgia

59 Ga. 17

John W. Carswell, executor, plaintiff in error. v. Henry J. Schley et al., defendants in error.

Supreme Court of the State of Georgia

(August Term, 1877.)

United States Courts. Removal of causes. Judgments. Practice in the Supreme Court. Venue. Pleadings. Husband and wife. Parties. Practice in the Superior Court. Before Judge Gibson. Burke Superior Court. October Adjourned Term, 1876.

Reported in the opinion.

A. M. Rogers; John J. Jones, for plaintiff in error.

Hook & Webb; W. W. Montgomery; E. F. Lawson, for defendants.

*BLECKLEY, Judge.

To May Term, 1874, of Burke superior court, Schley and wife and Miller brought their bill in equity, against Carswell as executor of Miller, the deceased father of Mrs. Schley, and of Miller, the complainant. Discovery was expressly waived. The matter in controversy exceeded five hundred dollars, exclusive of costs. The object of the suit was to recover certain property, and the hire and profits thereof, claimed by Mrs. Schley and her brother under an ante-nuptial settlement into which their parents entered, in 1827, in contemplation of marriage. It was alleged that their deceased father continued to hold the property after their mother's death, and until his own death, and that he died in possession of the same, or chargeable therewith, etc. At the appearance term, the defendant demurred to the bill for the want of equity, and for other reasons. The demurrer was overruled on the 9th of March, 1875, and that judgment was affirmed in the supreme court on the 12th of May, 1876. The case is reported in 56th Ga., 101. The remittitur reached Burke superior court during the May term, 1876, and was made the judgment of that court on the 24th of May. Subsequently, in the same term, an order was passed directing that an answer be filed sixty days before the next term, and that the cause stand for trial at the said next term. On the 9th of August, 1876, the complainants amended their bill, accommodating its tenor more exactly to the view of their rights expressed by the supreme court, adding specific allegations touching hire, etc., and introducing certain charges as to the conduct of the executor in respect to a part of his administration. The defendant's answer to the bill was filed on the 12th of September, 1876. The fall term of Burke superior court commenced in the following October, and was adjourned over to November. During the sitting of the court in November, the complainant, Schley, made and filed his petition for a removal of the cause into the circuit court of the United States, and therewith *filed his bond, with good and sufficient surety, conditioned as required by the act of Congress of March 3rd, 1875. The court accepted the petition and bond, and passed an order that the cause be removed. The defendant excepted; and this action of the court on the application for removal is alleged to be erroneous.

1. When the case was called here for argument, counsel for Schley moved to dismiss the writ of error upon the ground that whether removal was effected or not, was a question for decision by the circuit court of the United States, upon a motion to remand, and that this court could not entertain it. In Amory v. Amory, lately decided by the supreme court of the United States, (16 Albany Law Journal, 392,) the right of the state court to look into the petition for removal, and compare it with the statute, was distinctly recognized. Such a power in the state tribunal must exist of necessity. When the court in which a cause is pending is called on to yield its jurisdiction on statutory conditions, said to appear on the face of certain documents presented to it, it must inspect the documents and determine whether the conditions appear or not. How else is it to know whether to retain the case or part with it? whether to grant the application or refuse it? whether to treat the case as still pending or out of court? If a court is to know the situation of its own business, and how to order its proceedings in reference thereto, it cannot decline the duty of deciding whether a given case is a part of its business or not, when the question is properly made before it. The scheme of removal ordained by the act of congress, is open and public. It is by petition. It contemplates a taking with leave, and not furtively by a sort of statutory larceny. The state court is to know of the proceedings for removal, and to see that they are such as the act prescribes. When they conform to the act, the court has no right or power to retain the case; and when they fail to conform in any essential particular, it has no right or power tosend the case away or order it removed. Until there is a sufficient petition there can be no transfer; and *whether or not the petition, reading it in connection with the record, is sufficient, can and ought to be decided, in the first instance, by the court whose duty it is to accept it. The acceptance or rejection of the petition involves a decision upon its sufficiency.

2. The supreme court of this state is a court for the trial and correction of errors from the superior courts, and city courts. Code, § 5086. "Either party, in any civil cause, * * in the superior courts of this state, may except to any * * judgment, or decision, or decree, of such court, or of the judge thereof, in any matter heard at chambers." Ib., § 4251. If the superior court could, and did, make a decision on the petition for removal, we entertain no doubt that it is subject to review here, on writ of error. We do not know of any class of decisions which the superior court has power to make, that cannot be reviewed here. In exercising the power of revision, the supreme court acts solely for the purpose of guiding the superior court of Burke county, as a state tribunal, in the performance of its functions. The laws of the United States are the laws of Georgia, and are to be administered by her courts no less faithfully than her own local enactments. All acts of congress that speak constitutionally, should be obeyed without hesitation or reluctance. Not only are they law for us, but they are a part of our supreme law, and must be respected accordingly. As ultimate questions, what they mean, and how they are to be administered, are for decision by the federal judiciary; but this does not relieve the state tribunals from taking their due part in construction and administration. Conflicting constructions need not be anticipated. On the contrary, the presumption is, that statutes which are common to two governments, will be understood by the tribunals of both, to utter the same voice. The motion to dismiss the writ of error is overruled.

3. We now look into the petition. It alleges that the complainants in the bill are all citizens of Texas; but it contains no express averment as to the citizenship of Carswell, *the defendant. Neither does the bill itself, nor any other part of the record. In the prayer of the bill for subpoena, he is described as "of said county of Burke." In the petition for removal, the description is substantially the same. Such terms are insufficient to ground jurisdiction upon, where citizenship is a requisite condition. See Brown v. Keene, 8 Peters, 112, and the cases therein cited. Also, see 1 Brock 389. As reported in 16 Albany Law Journal, 392, Chief Justice Waite, speaking for the supreme court of the United States, says, "the right of removal is statutory. Before a party can avail himself of it, he must show upon the record that his in a case which comes within the provisions of the statute. His petition for removal, when filed, becomes a part of the record in the cause. It should state facts which, taken in connection with such as already appear, entitle him to the transfer. If he fails in this, he has not, in law, shown to the court that it cannot 'proceed further with the cause.' Having once acquired jurisdiction, the court may proceed until it is judicially informed that its power over the cause has been suspended." The petition does affirm that the "controversy is wholly between citi-zens of different states, and can be fully determined as between them by the circuit court of the United States;" but this is a conclusion, and not a direct, issuable fact as to citizenship. To arrive at defendant's...