Ficklin v. Tarver

• Decision Date: 31 August 1877
• Citation: 59 Ga. 263
• Parties: Slaughter W. Ficklin, plaintiff in error. v. Henry A. Tarver et al., defendants in error.
• Court: Georgia Supreme Court

59 Ga. 263

Slaughter W. Ficklin, plaintiff in error. v. Henry A. Tarver et al., defendants in error.

Supreme Court of the State of Georgia

(August Term, 1877.)

Removal of causes. United States Courts. Notice. Before Judge Wright. Baker Superior Court. May Term. 1877.

Reported in the opinion.

R. N. Ely; D. A. Vason, for plaintiff in error.

Warren & Hobbs, for defendants.

BLECKLEY, Judge.

A citizen of Virginia, as sole complainant, had a bill in equity pending in Baker superior court, against several citizens of Georgia, and a citizen of New York. The amount in controversy was over ten thousand dollars. Service had been duly effected on the Georgia defendants, but, so far as appears, none had been effected on the New York defendant. At the appearance terra, after notice to counsel who represented one of the Georgia defendants only, the complainant petitioned, in terms of the act of congress of March

3, 1875, for a removal of the cause to the appropriatecircuit court of the United States, filing, for acceptance *by the court, the requisite bond and security, according to the act. Objection was made, on the part of the defendant represented by counsel, that the other defendants had not been notified of the application. The court, thereupon, refused to consider and act upon the application, until the other defendants were notified of it. This refusal is excepted to as erroneous.

For a very full presentation of the subject of removing eases from the state courts into the federal courts, and for a copious citation of authorities, see the Southern Law Review, new series, vol. 2, p. 282; and vol. 3, p. 3—the former article by Judge Dillon, the latter by Chancellor Cooper. Judge Dillon's article, with some additions, has appeared in a separate pamphlet, under the title of "Removal of Causes from State Courts to Federal Courts." On page 67 of this pamphlet, (note 107,) it is said "the adverse party is not entitled to notice of the time and place of presenting the petition, " citing 8 Blatch., 243, 247. If notice was not required under former acts of congress, neither is it under the act of 1875, (19 United States Statutes at Large, 470,) for the mode of removal is substantially the same, so far as presenting the application to the state court is concerned, under all the acts. Conkling (Treatise 447, n.) thinks notice proper, upon principle, and says it can be required by rules of practice in the state courts. He adds that according to the established practice of the courts of New York, notice must be given of all special motions in causes pending. The language of the act of congress is, that the party may make and file a petition, and shall make and file therewith a bond, with good and sufficient surety, and "it shall then be the duty of the state...