United States v. Sessions
| Decision Date | 16 May 1913 |
| Docket Number | 2,329. |
| Citation | 205 F. 502 |
| Parties | UNITED STATES ex rel. BUTTERWORTH & LOWE v. SESSIONS, Judge. |
| Court | U.S. Court of Appeals — Sixth Circuit |
Hyde Earle & Thornton, of Grand Rapids, Mich., for petitioner.
Kleinhans & Knappen, of Grand Rapids, Mich., for respondent.
Before WARRINGTON and DENISON, Circuit Judges, and SATER, District judge
The relator prays for a writ of mandamus requiring the District Judge to dismiss from the District Court of the United States and remand to the circuit court for the county of Kent Mich., a certain cause, entitled 'Butterworth & Lowe, a Corporation, Plaintiff, v. Acme Cement Plaster Company, a Foreign Corporation, Defendant. ' That suit is one at law and of a civil nature. Admittedly it is one of which the state court had full jurisdiction, both as to parties and subject-matter. A petition for removal to the District Court was filed in due time in the state court by the defendant in that suit, showing diverse citizenship and residence in accordance with the removal statute. The petition was accompanied by a bond in the sum of $500, with sureties, and was approved by the court. The day following the filing of the petition for removal counsel for the defendant gave written notice to counsel for the plaintiff of the filing of such petition and bond and its approval, stating that thereby removal was effected. Within 30 days of the filing of the petition, the transcript of record was filed in the District Court. Apart from the notice, it is admitted that the transcript affirmatively shows the necessary jurisdictional facts to warrant removal to the District Court.
The plaintiff in the original suit entered a motion in the District Court, without limiting in terms the object of its appearance, to dismiss the cause and remand it to the state court on the ground:
'That no notice whatever was served upon or given to the plaintiff in said cause before the filing of the petition for removal in the circuit court for the county of Kent, as provided in sections 28 and 29 of the Judicial Code. ' (Act March 3, 1911, c. 231, 36 Stat. 1094, 1095 (U.S. Comp St. Supp. 1911, pp. 141, 142)).
The motion was overruled. Several reasons were assigned by the court, to the effect that the requirement of notice is not jurisdictional or mandatory, but merely directory, and that failure to serve notice prior to the filing of the petition and bond was simply an irregularity, which worked no injury to the adverse party. The portion of the removal section thus involved provides:
'Written notice of said petition and bond for removal shall be given the adverse party or parties prior to filing the same. ' Judicial Code, Sec. 29.
Section 29 was derived from section 3 of the Removal Act of August 13, 1888, c. 866, 25 Stat. 435 (U.S. Comp. St. 1901, p. 510), and the portion respecting prior written notice was the only change of importance introduced. The requirement of notice was changed in Congress from that of 'due notice' to 'written notice.' The language in form is imperative. Why should not such prior notice be regarded as an essential step in the process of removal? The rule is that, since the right to remove is statutory, in order 'to effect a transfer of jurisdiction all the requirements of the statute must be followed. ' Babbitt v. Clark, 103 U.S. 606, 610 (26 L.Ed. 507). The provision is either mandatory or inoperative. There is no middle course. The mandate must be carried into effect or be practically destroyed. However, we cannot, at this stage, definitely pass upon the question, for after all the present record presents only a question of jurisdiction. The power in a district court to determine such a question applies as well to a case without as to a case within its jurisdiction.
The inquiry, then, is whether, in a mandamus proceeding, this court is invested with power to reverse the action of the District Court in denying the motion to remand and so taking jurisdiction of the cause. There are several controlling reasons why the question must be answered in the negative.
One is that this court has no power, even on error or appeal, to review a decision of the District Court which involves only a question of the...
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