Imágenes de páginas

602; Weed Sew. Mach. Co. v. Smith, 71 Ill. 204. Contra: Campbell v. Wallen, 1 Ma: t. & Y. 266.

9 Kirkpatrick v. Hopkins, 2 Miles, 277. 10 Beebe v. Cheeney, 11 The Reporter, 369. 11 Campbell v. Wallen, 1 Mart. & Y. 266. 12 Hill v. Henderson, 21 Miss. 688. 13 Tunstall v. Madison, 30 La. An. 471.

14 Brown v. Crippen, 4 Hen. & M. 173; Stevens v. Richardson, 13 The Reporter, 678; S. C., 9 red. Rep. 191.

15 Dennis v. Ala nua, 3 Woods, 683.
16 Weed Sew. Mach. Co, v. Smith, 71 III. 201.
17 Weed Sew. Mach. Co. v. Smith, 71 III. 231.
18 Orosco v. Gagliardo 22 Cal. 83; Suydam v. Smith, 1 Denio, 263.
19 Fitz v. Hayden, 4 Martin, N. S. 653.
20 Mix v. Andes Ins, Co. 74 N. Y. 53.

21 Weed Sew. Mach. Co. v. Smith, 71 III. 264; Darst v. Bates, 51 Ill. 439; Miller v. Finn, 1 Neb. 251.

22 Empire Trans. Co. v. Richards, 88 Ill. 404.
23 Cook v. Seligman, 7 Fed. Rep. 263.
24 Taylor v. Shaw, 54 N. Y. 75.

25 Yulee v. Vose, 91 U. S. 539; Taylor v. Shaw, 54 N. Y. 75; Mix v. Andes Ins. Co., 74 N. Y. 53.

26 Yulee v. Vose, 94 U. S. 539; S. C., 64 N. Y. 149; Fisk v. Union Pac. R. CO., 6 Blatchf. 352; Mix v. Andes Ins. Co., 71 N. Y. 53.

27 De Camp v. N. J. M. L. Ins. Co., 2 Sweeney, 481.
28 State v. Tiedermann, 10 Fed. Rep. 20.
29 Hervey v. Illinois M. R. Co., 3 Fed. Rep. 707.
30 Stevens v. Richardson, 9 Fed. Rep. 191.
31 Miller v. Finn, 1 Neb. 254.
32 Clippinger v. Missouri Val. Ins. Co., 26 Ohio St.?^4.
33 Clippinger v. Missouri Val. Ins. Co., 26 Ohio St. 404.
31 Jones v. Seward, 17 Abb. Pr. 377.
35 Cooke v. Seligman, 7 Fed. Rep. 263,
36 Combs v. Nelson, 91 Ind. 123.
37 Sheldrick v. Cockroft, 27 Fed. Rep. 579.
33 Harrold v. Arrington, 64 Fed. Rep. 233.

39 Public Grain and Stock Exchange v. Western Union Telegraph Co., 16 Fed. Rep. 283; Stevens v. Richardson, 20 Blatchf. C. Ct.53.

40 Ellis v. Atlantic & Pacific R. Co., 135 Mass. 338.
41 Norris v. Mineral Point Tunnel Co., 19 Blatchf. C. Ct. 201.

§ 106 b. Filing bond a jurisdictional prerequisite.—The bond, as well as a peti.ion, required by the statute of 1887, upon removal on the ground that the cause arises under a Federal statute, must be filed at or before the time of answering expires. It is a jurisdic


tional prerequisite to the removal of a cause. Giving the requisi e surety for appearing in the Federal court is one of the conditions necessary to the right of removal.3 If petitioner fails to file his bond, the case remains in the State court.* The bond must provide for payment of costs in case of a remand. 5

1 Austin v. Gagan (Cal.), 39 Fed. Rep. 626. 2 Shedd v. Fuller, 36 Fed. Rep. 609.

3 Johnson v. Monell, 1 Woolw. 390; Dillon, Remov. of Causes, 19; Roberts v. Cannington, 2 Hall. 619; Hazard v. Durant, 9 R. I 602.

4 Hill v. Henderson, 13 Smedes & M. 688.

5 Sheldrick v. Cockcroft, 27 Fed. Rep. 579; Torrey v. Grant Wks., 14 Blatchford, 269. See, however, Dennis v. Alachua Co., 3 Woods, 683.

§ 106 c. Form and sufficiency of bond. A Federal court will not, on motion to remand, enter upon inquiry as to the sufficiency of the sureties on the bond;' and the cause will not be remanded on this ground;2_nor because it is irregular or objectionable in form.3 A Federal court will not, on motion, enter on the inquiry as to the sufficiency of the sureties on a bond approved by the State court. If the conditions in the bond omit to provide for the payment of costs, the cause will be remanded.5 The form of the hond or security is, however, immaterial.6 The Act of Congress does not make it necessary that two persons should sign the bond as sureties. One competent surety is sufficient; and the fact that another who had signed was an attorney of the court, and forbidden to become a surety, does not vitiate the bond.? A bond complying with the statute in every other respect is not defective, under the Act of 1887, because it is limited to a fixed penalty, where this is sufficient to cover the cost likely to accrue in the case. Although a bond be defective, it may be held to be sufficient.9 The defect may be cured by amendment with leave of court;10 or a new bond may be substituted in the Federal court;li but it must provide for the appearance of the petitioner at the next term of the court. 12

1 Van Allen v. Atchinson C. & P. R. Co., 3 Fed. Rep. 545.
2 Dennis v. Alachua Co., 3 Woods, 683.
3 Harvey v. III. M. R. Co., 12 Ch. L. N. 407.
4 Van Allen v. Atchinson, C. & P. R. Co., 3 Fed Rep. 545.

5 Torrey v. Grant Loco. Wks., 14 Blatchf. 267; McMurdly v. Conn. G. L. Ins. Co., 9 Cn. L. N. 324; Farmers' L. & T. Co. v. C. P. & S. R. Co., 12

Ch. L. N. 65. Contra: Baker v. Peterson, 4 Dill. 562; Dennis v. Alachua Co., 3 Woods, 683.

6 Tunstall v. Madison Parish, 30 La. An. 471; Mix v. Andes Ins. Co., 75 N. Y. 53. If the penalty is sufficient: Miller v. Finn, 1 Neb. 254; Beade v. Cheeney, 5 Fed. Rep. 388.

7 Mayer v. Delaware R. Construction Co. (Removal Cases), 100 U.S, 457; Stevens v. Richardson, 20 Blatchf. 53; Public Grain and Stock Exch. v. W. U. Tel. C,0.11 Biss. 508.

8 Kentucky v. Louisville Bridge Co., 42 Fed. Rep. 241. 9 Removal Cases, 100 U.S. 457. 10 Dennis v. Alachua Co., 3 Woods, 683; Ayers v. Watson, 113 U. S. 594.

11 Harris v. Delaware, L. & W.R. Co., 18 Fed. Rep. 838; Colburn v. Cedar Valley Land Co., 25 Fed. Rep. 791.

12 Miller v. Finn, 1 Neb. 254.


§ 106 d. Approval of bond.—Whether the Federal courts have the power to approve the bond after the State court has disapproved it, or to disapprove it after the State court's approval, is still unsettled. Where a judge of the superior court approved a bond tendered for the purpose of removing a cause, and thereby virtually gave judgment for the removal, this was a final order disposing of the case in the superior court, and is reviewable in this court.2 Whether or not the removal bond shall have a fixed penalty, a bond otherwise valid is properly accepted where the penalty is sufficient to cover the costs likely to accrue.3

1 See Dennis v. Alachua Co., 3 Woods, 683; Osgood v, Chicago etc. R. Co., 6 Biss. 330; Fiske v. Union Pacific R. Co., 6 Blatchf. 862; Taylor v. Shew, 54 N. Y. 75; Mix v. Andes Ins. Co., 74 N. Y. 53; Stone v. South Carolina, 117 U.S. 430; Carson v. Dunham, 121 U. S. 421.

2 Angier v. E. Tenn. etc. R., 74 Ga. 634.
3 Kentucky v. Louisville Bridge Co., 42 Fed. Rep. 241.


§ 106 e. Special bail.“ Bail” means an undertaking for the personal appearance of the party, and does not imply bond for forthcoming of attached property. “Spe. cial bail” does not include delivery bonds executed to discharge property from attachment.? When special bail is not originally demandable in an action, the removal bond need not contain a condition for the entry of the defendant's appearance in the Federal court, though he has not yet entered such appearance in the State court, as the act mentioned only requires that condition when special bail may originally be demanded. 2

1 Ramsey v. Coolbaugh, 13 Iowa, 164. 2 Burck v. Taylor, 39 Fed. Rep. 581.

§ 107. Time to file record-Misfeasance of clerk-Certiorari.—That in all causes removable under this act, if the term of the circuit court to which the same is removable, then next to be holden, shall commence within twenty days after filing the petition and bond in the State court for its removal, then he or they who apply to remove the same shall have twenty days from such application to file said copy of record in said circuit court and enter appearance therein; and if done within said twenty days, such filing and appearance shall be taken to satisfy the said bond in that behalf; that if the clerk of the State court in which any such cause shall be pending shall refuse to any one or more of the parties or persons applying to remove the same a copy of the record therein, after tender of legal fees for such copy, said clerk so offending shall be deemed guilty of a misdemeanor, and, on conviction thereof in the circuit court of the United States to which said action or proceeding was removed, shall be punished by imprisonment not more than one year, or by fine not exceeding $1,000, or both, in the discretion of the court. And the circuit court to which any cause shall be removable under this act shall have power to issue a writ of certiorari to said State court, commanding said court to make return of the record in any such cause removed as aforesaid, or in which any one or more of the plaintiffs or defendants have complied with the provisions of this act for the removal of the same, and enforce said writ according to law; and if it shall be impossible for the parties or persons removing any cause under this act, or complying with its provisions for the removal thereof, to obtain such copy, for the reason that the clerk of said State court refuses to furnish a copy on payment of legal fees, or for any other reason, the circuit court shall make an order requiring the prosecutor in any such action or proceeding to enforce forfeiture or recover penalty as aforesaid, to file a copy of the paper or proceeding by which the same was commenced, within such time as the court may

determine, and in default thereof the court shall dismiss the said action or proceeding; but if said order shall be complied with, then said circuit court shall require the other party to plead, and said action or proceeding shall proceed to final judgment; and the said circuit court may make an order requiring the parties thereto to plead de novo; and the bond given, conditioned as aforesaid, shall be discharged so far as it requires a copy of the record to be filed as aforesaid. (Act of March 3, 1875, section 7.)

§ 107 a. Damages for failure to enter copy of record. -At least nominal damages may be recovered for failure to enter in the circuit court of the United States a copy of the record in a cause removed from a State court, as provided in the bond given on removal.1

1 Henry v. Louisville & N. R. Co., 91 Ala. 585.

§ 107 b. The record.—The copy of the record must be duly certified,' and detached papers may be certified to, and may constitute the record if duly certified. The cause is removed as of the date when the motion is made, and the papers should be certified as of that date;but it is not sufficient to enter merely a copy of the summons;' “process” is equivalent to proceedings. It is not necessary that the fact of alienage or citizenship should appear

« AnteriorContinuar »