Noble v. Massachusetts Ben. Ass'n

• Citation: 48 F. 337
• Parties: NOBLE v. MASSACHUSETTS BEN. ASS'N.
• Decision Date: 20 November 1891
• Court: U.S. District Court — Northern District of New York

48 F. 337

NOBLE v. MASSACHUSETTS BEN. ASS'N.

United States Circuit Court, N.D. New York.

November 20, 1891

John E Pound, for plaintiff.

J. K Hayward, for defendant.

WALLACE J.

This is a motion by the plaintiff to remand this action to the state court from which it originated. The suit was brought in the supreme court of the state of New York, Niagara county being specified in the complaint as the place of trial. Before the expiration of the time to plead or answer to the complaint the defendant presented a petition, accompanied by a bond properly conditioned and with good and sufficient security at a term of the supreme court then in session in the county of Erie, and the justice presiding indorsed his acceptance upon the petition and bond. Thereupon the defendant filed the petition and bond with the clerk of the county of Erie. It is conceded by the plaintiff that the petition and bond were properly presented at the term of the court in session in Erie county; but the plaintiff insists that they should have been filed with the clerk of the county of Niagara, the action has not been properly removed. The clerks of the several counties of this state are clerks of the supreme court within their respective counties; and the clerk of the county of Niagara is the custodian of the records in all suits in the supreme court the venue of which is laid in that county. Section 3 of the act of March 3, 1875, as amended by the act of March 3, 1887, provides that 'whenever any party entitled to remove any suit * * * may desire to remove such suit from the state court to the circuit court of the United States, he may make and file a petition in such suit in such state court, * * * and shall make and file therewith a bond, with good and sufficient surety,' and 'it shall then be the duty of said state court to accept said petition and bond, and proceed no further in such suit. ' The statute requires the bond to be conditioned for the entering by the removing party in such circuit court, on the first day of its then next session, of a copy of the record in such suit. Section 7 provides that if the clerk of the state court in which any such cause shall be pending shall refuse to any party, applying to remove the same, a copy of the record therein, he shall be deemed guilty of a misdemeanor; and also provides that the circuit court to which the suit shall be removable shall have power to issue a writ of certiorari to said state court, commanding said state court to make return of the record in any such cause. It is manifest from these several provisions that the petition and bond which are to be filed in the suit in the state court are to be filed with the clerk of that court, who has the custody of the records in the suit, and can supply a copy of the record to the removing party, or to the circuit court, upon return to a writ of certiorari.

It is also apparent that, unless the petition and bond are filed by the removing party in the office of the clerk of the county of the venue, neither the opposite party nor the state court would have any formal or adequate notice of the removal of the suit, and of the consequent inability to proceed further in the state court. The statute does not require any notice of the proceeding to be given by the removing party to the adverse party, except by the filing of the petition and bond and, in my judgment, notwithstanding recent opinions to the contrary by judges whose views are entitled to great weight, it does not require the removing party to present his petition or bond to a judge, either in vacation or in open court, but is satisfied when he filed them with the official custodian of...