Mays v. Newlin

• Citation: 143 F. 574
• Parties: MAYS v. NEWLIN.
• Decision Date: 25 January 1906
• Court: United States Courts of Appeals. United States Court of Appeals (4th Circuit)

143 F. 574

MAYS v. NEWLIN.

United States Circuit Court, W.D. Virginia.

January 25, 1906

Caskie & Coleman and Whitehead & Whitehead, for plaintiff.

Beasley & Moon and W. K. Allen, for defendant.

McDOWELL District Judge.

This is an action at law commenced in the corporation court of the city of Lynchburg, and removed to this court, on the ground of the nonresidence of the defendant. Process was issued on April 5, 1905, returnable to the May rules. The defendant conceded to be a citizen and resident of Pennsylvania, was found and served with process in due time in this state. At the May rules (held April 24, 1905) the declaration was filed, and the defendant filed in the office of the clerk of the corporation court a petition for removal and a bond subsequently adjudged to be in good form and accepted. The order of the state court, made on June 10, 1905, reads, in so far as is now material, as follows:

'And now at this day, to wit, at a corporation court for the city of Lynchburg, continued and held at the courthouse thereof on Saturday the 10th day of June, A.D. 1905, being the day and year first herein mentioned. On the first day of the May term, 1905, of this court, the defendant, by counsel submitted a motion, ore tenus, in open court, for the removal of this cause to the Circuit Court of the United States for the Western District of Virginia, which motion was denied by this court, on the ground that the cause was still at rules and so not matured, therefore not before the court. And no record was made of said motion. On the 7th day of June, 1905 (being the first day of the sitting of this court at its June term, 1905), the defendant, by counsel, submitted the same motion in open court, ore tenus, which motion, not being objected to by counsel for plaintiff, who was then present at the bar of the court, was granted by this court, but later on the same day and before such order of removal was entered by the clerk, counsel for defendant asked leave to withdraw their said motion for the time being, and such leave was accordingly granted. And thereupon, at a later day of the same term, to wit, on the 9th day of June, 1905, the defendant, by counsel, filed herein his motion in writing for the removal of this cause to the Circuit Court of the United States for the Western District of Virginia. * * * Now therefore, this court doth now hereby accept and approve said bond and accept said petition, and doth order that this cause be removed for trial to the next term of the Circuit Court of the United States for the Western District of Virginia at Lynchburg, pursuant to the statute of the United States, and the clerk of this court is hereby ordered forthwith to transcribe and certify a transcript of the proceedings herein to said court, including the attachment proceedings herein; and it is further ordered that all other proceedings of this court herein be stayed.' The copy of the record was made June 15, 1905, and was filed in this court September 12, 1905. been present, would have commenced on Monday, June 5th. It appears from the above quoted order of June 10th that that term of the court was actually commenced on June 7th. Section 3122, Code 1904, reads:

'Though a court be not held on the first day of a term, it may nevertheless be opened on any subsequent day, if, in the case of a circuit or corporation court, the same is done before four o'clock in the afternoon of the third day.'

The order of attachment, issued on June 6th, concludes as follows:

'Therefore we command you that you attach the estate of the said H. H. Newlin for the amount of the said $5,000.00; and that you secure such estate so attached in your hands, or so provide that the same may be forthcoming and liable to further proceedings thereupon to be had before our said court on the first day of the June term, 1905, thereof; and that you make return hereof at that time how you have executed the same. And have then there this writ.'

After the removal of the cause to this court the defendant moved that the attachment be quashed. This motion was resisted, and the questions involved must now be considered.

It is contended in behalf of the defendant that the attachment is void (1) because issued after the petition for removal and bond had been filed and (2) because the attachment is returnable to a day that had passed prior to the issue of the attachment.

Judicial complaints of the confusion of thought, the inconsistencies and the wholly unnecessary want of clearness in the 'Judiciary Act' (Act March 3, 1875, c. 137, Sec. 1, 18 Stat. 470, 1 U.S.Comp.St. 1901, p. 508; 4 Fed.St.Ann. 265 et seq.) have been unceasing and unavailing. But, until Congress sees fit to act, the courts must continue their efforts to construe this perplexing statute as best they may. Whether or not, in a proper case for removal, the jurisdiction of the state court ceases on the filing in the clerk's office of the state court of a petition for removal and a proper bond, is a question which, so far as I am advised, has never been expressly decided by the Supreme Court, and is one on which there is among the subordinate federal courts much conflict of opinion. There are undoubtedly expressions in the opinions of the Supreme Court indicating that mere filing of the petition and bond, in a proper case for removal, eo instanti, terminates the jurisdiction of the state court. But these expressions are dicta, and in other opinions are found dicta indicating that the petition and bond must be presented to the state court, or a judge thereof (Remington v. Railroad Co., 198 U.S. 95, 99, 25 Sup.Ct. 577, 49 L.Ed. 959), in order to terminate the jurisdiction of such court. See Traction Co. v. Mining Co., 196 U.S. 239, 244, 25 Sup.Ct. 251, 49 L.Ed. 462, and cases there cited. Many of the irreconcilable decisions of the federal trial courts are cited in 18 Ency.Pl.&Pr. 320, 321. Among those holding that presentation of the petition and bond to the state court, or the judge thereof, is essential may be mentioned; Shedd v. Fuller (C.C.) 36 F. 609; Roberts v. Railroad Co. (C.C.) 45 F. 433; Hall v. Chattanooga Agricultural Works (C.C.) 48 F. 599; Kinne v. Lant (C.C.) 68 F. 436, 438; La Page v. Day (C.C.) 74 F. 977; Fox v. Railroad Co. (C.C.) 80 F. 945. See, also, 4 Fed.St.Ann. 351. In support of the opposite view the following cases are in point: Miller v. Tobin (C.C.) 18 F. 609, 613; Brown v. Murray, Nelson & Co. (C.C.) 43 F. 614; Noble v. Ass'n (C.C.) 48 F. 337; Wills v. Railroad Co. (C.C.) 65 F. 532. I have found no decision of the question before us by the Circuit Court of Appeals of the Fourth Circuit. The question is at large and must be determined as may seem most in accord with the intent of the removal statute. The language of the statute clearly imports that the petition and bond shall be presented to the state court. It is not expressly stated that the jurisdiction of that court ceases upon the mere filing of these papers, and, on the other hand, the time when the state court shall 'proceed no further in such suit' is after that court has been afforded opportunity to 'accept' the petition and bond. Since the rulings (Noble v. Ass'n (C.C.) 48 F. 337; Loop v. Winter's Estate (C.C.) 115 F. 362; Remington v. Railroad Co., 198 U.S. 95, 99, 25 Sup.Ct. 577, 49 L.Ed. 959; Groton Co. v. American Co. (C.C.) 137 F. 284, 289; Johnson v. Computing Co. (C.C.) 139 F. 339, 343) to the effect that the petition and bond may be presented to a judge of the state court in vacation, the strongest argument in support of the view that the mere filing of these papers ends the jurisdiction of...