Copeland v. Erie R. Co.
| Decision Date | 25 January 1934 |
| Docket Number | No. 797,798.,797 |
| Citation | 5 F. Supp. 906 |
| Parties | COPELAND v. ERIE R. CO. KUEHN v. SAME. |
| Court | U.S. District Court — Southern District of Ohio |
Walter L. Pearson and H. P. Williamson, both of Dayton, Ohio, for plaintiffs.
H. L. Ferneding, of Dayton, Ohio, for defendant.
On June 26, 1933, defendant in each of the above-entitled causes, respectively, filed a motion directed to the petition. Subsequently, on September 26, 1933 (cause No. 798), and on October 13, 1933 (cause No. 797), plaintiff in each of the cases, respectively, by his counsel filed a motion to remand the causes to the common pleas court of Montgomery county, Ohio, whence they came. The basis of the motion to remand filed by plaintiff, in each instance, is the same, to wit: "That defendant failed to file a transcript of the proceedings of the Court of Common Pleas of Montgomery County, Ohio, within thirty days after filing of said petition and bond, and did not file said transcript of the proceedings in the Court of Common Pleas of Montgomery Co. Ohio, in this Court within thirty (30) days as provided, and in accordance with the Statutes of the United States permitting the removal of causes from the said State Courts to the United States District Court." The statute, the provisions of which are involved herein, is section 72, title 28, USCA (Judicial Code § 29).
A transcript of the record in the common pleas court of Montgomery county, Ohio, in each case respectively, was filed in this court on June 19, 1933. The record shows that the petition and bond for removal, in each case respectively, was filed in the common pleas court of Montgomery county, Ohio, on the 9th day of May, 1933, at which time the judge of the common pleas court ordered that each cause, respectively, be removed for trial into the District Court of the United States for the Southern District of Ohio, and all further proceedings in the common pleas court stayed. It is apparent, therefore, that more than thirty days elapsed between the date of the filing of the petition and bond in the common pleas court of Montgomery county, Ohio, and the filing of the transcript in this court.
The record further shows that on the 12th day of June, 1933, a judge of the common pleas court, upon application of the defendant, put on an order in each case, respectively, to the effect that "the time is extended and leave granted said defendant to file the transcript of the proceedings in the Common Pleas Court in said United States District Court on or before the 24th day of June, 1933."
It is claimed by counsel for plaintiff that the common pleas court of Montgomery county, Ohio, was wholly without power or authority to grant this extension. This court agrees with counsel for plaintiff (respectively) in this respect. It has been repeatedly held that, when the petition and proper bond for removal have been filed in the common pleas court, that court has no further jurisdiction over the cause. It can do nothing more than order the same removed to the United States District Court. It is the view of this court that the entry filed in the common pleas court on June 12, 1933, and approved by the common pleas court, is a nullity, and of no force and effect. Kern v. Huidekoper, 103 U. S. 485, 490, 26 L. Ed. 354; Baltimore & O. Railroad Co. v. Koontz, 104 U. S. 5, 26 L. Ed. 643; Madisonville Traction Co. v. Saint Bernard Mining Co., 196 U. S. 239, 25 S. Ct. 251, 49 L. Ed. 462; State of South Carolina ex rel. Tillman v. Coosaw Co. (C. C.) 45 F. 804, affirmed 144 U. S. 550, 12 S. Ct. 689, 36 L. Ed. 537; Anderson v. Telegraph Co. (D. C.) 218 F. 78.
The question to be determined, therefore, is as to whether or not, as claimed by plaintiff (in each case respectively), the filing of the transcript in this court within the thirty-day period referred to is mandatory, or whether, as claimed by defendant, the court, in the exercise of a sound discretion and for good cause shown, may permit the transcript to be filed after the thirty-day period has elapsed.
Whether or not the transcript is filed within the thirty-day period does not in and of itself determine the jurisdiction of the United States court; this attaches when the...
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