McGregor v. McGillis

• Decision Date: 01 January 1887
• Citation: 30 F. 388
• Parties: McGREGOR v. McGILLIS and others.
• Court: U.S. District Court — Eastern District of Wisconsin

30 F. 388

McGREGOR v. McGILLIS and others.

United States Circuit Court, E.D. Wisconsin.

January, 1887

Fairchild & Fairchild, for the motion.

Ellis Greene & Merrill, contra.

DYER J.

This suit was begun in the state court in 1885. On the third day of October in that year the defendants filed a petition and the requisite bond for the removal of the cause to this court, alleging that the plaintiff was an alien, and that the defendants were citizens of this state. Although 15 months have elapsed since the petition for removal was filed, during which time four terms of this court have been held, the defendants have never caused to be entered here a copy of the record in the suit, as required by their bond, and by section 3 of the removal act of 1875. At the present term the plaintiff has brought to the court, and produced for filing a copy of the record, and has moved that the case be remanded to the state court. The ground chiefly urged in support of the motion is that the plaintiff is not an alien, but a citizen of the United States and of the state of Wisconsin but, upon suggestion being made that the defendants had been guilty of laches in not entering in this court a copy of the record in the suit, the court required explanation to be made of the causes of the defendants' failure to comply with the law in filing the record.

One of the counsel for the defendants has filed an affidavit in which he states that, on filing the petition and bond for removal, he directed the clerk of the state court to immediately transmit a certified copy of the record to this court, and that the clerk promised to comply with such instruction; that the deponent, relying on such promise, supposed that the record had been duly transmitted to the clerk of this court, and did not know that it had not been transmitted and filed until the second day of the present month; and it is alleged that the plaintiff has never moved to remand the case until the present motion was made, nor has he taken any action to bring the case to trial since the removal thereof. It is also alleged that the plaintiff has not been prejudiced by the delay in filing the record, because other suits involving the property in controversy in this suit have been pending in various courts since 1885, the trial of one or more of which was desired in advance of the trial of this case, and the defendants now consent that the case be placed upon the calendar without notice of trial, and be tried at the present term.

On the part of the plaintiff, an affidavit made by the clerk of the state court is submitted, in which the deponent states that, at the time of the filing of the petition and bond for removal, defendants' attorney told him that he would inform him (deponent) when he would have the record transmitted; that the attorney did not request or direct him to make any transcript of the record, or offer him any fees therefor, or inquire what such fees would be, but only requested him to file the petition and bond, and said he would let deponent know when he wished the record transmitted; that the deponent was never subsequently informed that defendants desired the record transmitted, and he denies that he was at any time directed or requested to immediately send the record to this court or that he promised to do so.

One of the attorneys for the plaintiff makes a verified statement, in which he says that in May, 1886, he inquired of the clerk of this court whether he had received a copy of the record, and was told that he had not, and that it had not been filed; that this inquiry was made with a view to making a motion to remand, in case the record had been entered. It also appears that in November, 1886, the deponent asked one of the defendants' attorneys if the record had yet been filed, and was informed that such attorneys knew nothing in the case, about it, and that the defendants have not to the present time caused a copy of the record in the suit to be entered in this court. A counter-affidavit has been filed by the attorney for the defendants who has charge of the case on their part, in which he denies that he said to the clerk of the state court that he would inform him when he would have the record in the case transmitted to this court; and states further, among other things, that he was never informed by his partner, with whom the plaintiff's attorney swears he had a conversation about the case in November, 1886, that the record had not been transmitted. Upon this state of facts, the question is raised whether the court should allow the case to proceed here as if the record had been duly entered by the parties making the removal, or should remand it to the state court.

Differences of opinion at one time, to some extent, prevailed in the subordinate federal courts as to whether the requirement of the act of 1875, that a copy of the record in the suit removed, shall be filed in the circuit court on the first day of the next session thereof following the filing of the petition for removal, is mandatory, and involves jurisdiction, or is directory merely, and involves only a matter of procedure. In Woolridge v. McKenna, 8 Fed.Rep. 650, the statute, in the particular mentioned was held to be directory, and as, by inadvertence, which was shown to be quite excusable, the transcript of the record from the state court was filed on the second instead of the first day of the term of the federal court next succeeding the filing of the petition and bond for removal, the court, in view of the exceedingly brief delay in filing the transcript, was of the opinion that the objection to the retention of the case on that ground was not...