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Statement of case.

1865, 12 id., vol. 14, p. 46.) The acts of congress referred to are (excepting so much of the fifth section of the act of 1863 as allows a new trial after judgment) all constitutional and valid. (Jones v. Seward, 17 Abb., 377; Hodgman v. Millward, 3 Grant's Cases, 406, 418; Kulp v. Ricketts, id., 420.) The provisions of the acts having been complied with, the State court at once loses jurisdiction, and the propriety of the transfer can be inquired into only in the United States court. (Illius v. N. H. R. R. Co., 13 N. Y., 59; Gorden v. Longest, 16 Peters, 97; Stevens v. Phoenix Ins. Co., 41 N. Y., 149; Fargo v. Mc Vicker, 38 How. Pr., 1; Kanouse v. Martin, 15 How. [U. S.), 198; and see Story on Constitution, §§ 1732-1753, and cases cited.) The order affects a substantial right and is appealable to this court under subdivision 4 of section 11 of the Code. (See Leland v. Hathorne, 9 Abb. [N. S.], 97; Townsend v. Hendricks, 40 How., 143; Bolles v. Duff, 10 Abb. [N. S.], 421; De Barante v. Deyermond, 41 N. Y., 357; Foote v. Lathrop, 41 id., 361; Ayres v. Gt. Western R. R., 45 N. Y., 264; State v. Dunlop, 65 N. C., 491.)

D. M. De Witt for the respondent. The order is. not appealable. (Code, § 11, sub. 2; § 349, sub. 3, 4; Illius v. N. Y. & H. R. R. Co., 13 N. Y., 597.) After the necessary steps are taken for removal, all subsequent proceedings in the State court are coram non judice (Stephens v. Phoenix Ins. Co., 41 N. Y., 149), and are reviewable on appeal from judgment. (Gordon v. Longest, 16 Peters, 97; Kanouse v. Martin, 15 How. [U. S.], 198, 210; Martin v. Kanouse, 6 How., 240.) It has always been held necessary for the party seeking a removal of his cause to make a motion to the State court, founded on his petition and bond. (Corp. v. Vermilye, 3 John., 145; Livingston v. Gibbons, 4 John. Ch., 94; Redmond v. Russell, 12 John., 153; Rogers v. Rogers, 1 Paige, 183; State of Penn. v. Cobbett, 3 Dallas, 467; Roberts v. Cannington, 2 Hall, 649; Blanchard v. Dwight, 12 Wend., 192; Carpenter v. N. Y. & N. H. R. R. Co., 11 How., 481;

Opinion of the Court, per ALLEN, J.

Livermore v. Jenks, 11 How. Pr., 479; Cooley v. Lawrence, 12 id., 176; Sudam v. Smith, 1 Denio, 263; Norton v. Hayes, 4 id., 245; Denniston v. N. Y. & N. H. R. R. Co., 2 Abb., 278, 415; Fairchild v. Durand, 8 Abb. Pr., 305; Disbrow v. Driggs, 8 Abb., 305, note *; Anderson v. Manufacturers' Bank, 14 id., 436; Bristol v. Chapman, 34 How. Pr., 140; Smith v. Butler, 38 id., 192; Ayres v. West. R. R. Corp., 48 Barb., 132; N. Y. Piano Co. v. N. H. S. Co., 2 Abb. [N. S.], 357; Gordon v. Longest, 16 Peters, 103, 104; Fisk v. C. R. I. & P. R. R. Co., 53 Bar., 472, 481; Cooke v. Nat. Bank, 1 Lans., 494; Jones v. Seward, 40 Barb., 563; 41 id., 274; Benjamin v. Murray, 28 How., 193; Patrie v. Murray, 42 Barb., 323.) The fifth section of the act of 1863 provides for the removal of those causes only where the defence created by the fourth section, as construed by section one of the act of 1866, is interposed. (Jones v. Seward, 41 Barb., 269; People v. Murray, 5 Park. Cr., 577; Patrie v. Murray, 43 Barb., 323; Benjamin v. Murray, 28 How. Pr., 193; Mayor v. Cooper, 6. Wallace, 247.) A party seeking to avail himself of the privileges of the act must show himself clearly within its provision. (Redmond v. Russell, 12 J., 153; Cooke v. State Nat. Bank, 1 Lans., 501.)

ALLEN, J. The defendant appeals from an order of the General Term of the Supreme Court dismissing an appeal from an order of the Special Term of the same court denying a motion to stay proceedings in the action in the State courts. The action is for false imprisonment, alleged to have been committed by the defendant in 1864. The defendant justifies the arrest and imprisonment of the plaintiff in Fort La Fayette at the time stated, and during the continuance of the rebellion as a major-general of volunteers, in the military service. of the United States, and claims the benefit of the acts of congress of March 30, 1863, and May 11, 1865, 12 Stat. at Large, 755; 14 id., 46, and of proceedings under those acts for the removal of the action from the State court to the Circuit Court of the United States for the southern district of

Opinion of the Court, per ALLEN, J.

New York. For all the purposes of this appeal we may assume the position taken in behalf of the defendant as sound, viz.:

1st. That the case is within the provisions of the act of congress referred to, and that the defendant is entitled to remove the same in the manner prescribed to the Federal courts.

2d. That the proceedings taken by law for the purpose of removing the cause conform strictly to the requirements of the act, and that he has done all that is required to be done for the removal of the action, and that his proceedings are entirely regular and within the acts. If these positions are not well taken, and either is held adversely to him, then he had no right to the stay demanded, and the order of the Supreme Court should be affirmed. If he is right in both particulars, then this action was and is effectually removed from the State court, and any proceedings in that court would be coram non judice and void. The Supreme Court had no longer jurisdiction of the cause, and no order it should make therein would be of the least force. An application to the court by a party claiming that the court has lost jurisdiction is a vain thing. It is inconsistent with the claim and the grounds upon which the application is made, as it implies that the court has a discretion to exercise-a right to determine whether it will or will not suffer the action to proceed in that forum. It is something like a waiver of the proceedings to remove the cause and a submission to the jurisdiction of the State court. The right to remove the cause, or the fact of removal, did not depend upon any act or assent of the State court; if so, it would make all benefit of the right to depend on the defendant's joining in or taking further proceedings in a court forbidden by law to entertain them. As said by Judge CURTIS: "It would engraft upon the act of congress a new proviso; although the court was required to proceed no further, yet it might proceed if the defendant should fail to plead to the jurisdiction, or, as in this case, omit to apply to the court for a stay of proceedings, thus making the stay, which

Opinion of the Court, per ALLEN, J.

is perfect under the act of congress, conditional, dependent on the act of the court. (Kanouse v. Martin, 15 How. U. S. R., 198.) When the application to remove a cause is in proper form, it is the duty of the State court "to proceed no further in the cause," and every step subsequently taken in the exercise of a jurisdiction in a case, whether in the same court or in the Court of Appeals, is coram non judice. (Gordon v. Longest, 16 Peters, 97.) The State court cannot, in its discretion, deny the right of removal. It is a novel proceeding for a suitor to apply to a court, from which the record and the cause have been removed, for relief, which the court having jurisdiction can only effectually grant. This court decided that an appeal would not lie from an order of the Supreme Court removing an action commenced there to the United States court. (Illius v. New York and N. H. R. R. Co., 3 Kern., 597.) The order did not affect a substantial right, and did not determine the action or permit a judgment therein. It was claimed in that case that the action was not within the United States judiciary act, and that the Circuit Court had, therefore, acquired no jurisdiction; and it was answered by the court "that the United States court will either assume jurisdiction of the suit and proceed to judgment, or it will not. If it does, then certainly the action has not yet been determined; if it refuses to do so, then the order complained of will be vacated, and the case will proceed in the Supreme Court. The question of jurisdiction must be decided by the Circuit Court itself. In Stevens v. Phonix Ins. Co. (41 N. Y., 149), and Ayers v. Western R. R. Corporation (see Memoranda), recently decided by this court, the question of jurisdiction was directly presented by the record, the Supreme Court having given judgment in the action. But here no order or judgment has been given against the defendant in disregard of the alleged removal of the action and under a claim of jurisdiction; that is, no jurisdiction has been asserted or exercised by the Supreme Court against the defendant in the action, and he has no absolute right to demand of the

Dissenting opinion, per GROVER, J.

Supreme Court the expression of an opinion as to the effect of the proceedings to remove the cause.

The order of the Supreme Court or of this court granting or refusing a stay would be, in effect, but the expression of an opinion upon the question; as neither court has the power to decide the question either way, the decision would neither be authoritative or final in the premises. Another tribunal has exclusive and paramount jurisdiction, and the parties should seek redress in that court. If the plaintiff persists in proceeding in the State court, the defendant should apply to the federal court for the proper mandate staying the proceedings in the State court, and to compel a transcript of the record to be certified to that court; and if the plaintiff claims that the cause has not, for any reason, been removed, he may apply to the Circuit Court to remand the cause. In this way there can be no possibie collision between the federal and State courts, and the constitution of the United States and the acts of congress will have full effect. The defendant has lost no substantial or absolute right by the denial of his motion. The act of congress, if he is within its terms and has complied with its provisions as he claims and we assume, without however deciding either question, stays absolutely all proceedings in the State court. An order of the Supreme Court is entirely unnecessary, and would add nothing to the force of the act. The court cannot be compelled to act in a case for either party where it has no jurisdiction.

The Supreme Court properly refused to grant the motion for the reason that, upon the claim of the defendant and upon which he must succeed if he is right, the court had no jurisdiction. Again, if it can be said that the court has any discretion, where it has no jurisdiction, it was discretionary with the court whether to grant the motion or remit the parties to the proper tribunal for an adjudication of the question.

The order should be affirmed.

GROVER, J. (dissenting). Whether the order is appealable to this court depends upon the inquiry, whether the defend

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