Arthur v. New England Mut. Life Ins.

U.S. Circuit Court

Arthur v. New England Mut. Life Ins.

2 F. Cas. 1, 1879 U.S. App. LEXIS 1702

DecidedJanuary 25, 1879

StatusPublished

This text of 2 F. Cas. 1 (Arthur v. New England Mut. Life Ins.) is published on Counsel Stack Legal Research, covering United States Circuit Court primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

Arthur v. New England Mut. Life Ins., 2 F. Cas. 1, 1879 U.S. App. LEXIS 1702 (uscirct 1879).

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Opinion

McKENNAN, Circuit Judge,

here said that to file on the first day means on or before. Defendant would not contend that he had no right to file -the copy of the record and rule the plaintiffs to declare before the day named in the act The language of the-statute meant merely to impose a limit of time within which the copy of -the record must be filed, not to forbid speedier action.

[S. C. Perkins, continuing, said: The act was intended to give the petitioner for removal the option to file on or before the day named. It was intended for his benefit; The judiciary act of 1789, § 12, (1 Stat. 79,) uses the same language; yet no case can be found in which the nonpetitioning party attempted to file the copy of the record. The intention of the act of 1789, and that of 1875, was that the cause should be begun anew in the federal circuit court. The established usage under the statute is proof of its meaning. The argument of inconven-[2]*2ienee should not be allowed to prevail over the words of the statute. Plaintiffs could not sue defendant on its bond if it filed a copy on the first Monday of next April, and this proves its right to delay the filing until that time.]

[A. Sidney Biddle, (and with him William Darlington,) against the motion. As soon as the petition and bond have been rightly filed, the state court loses jurisdiction, and any further proceedings by it are void. Taylor v. Rockefeller, Oase No. 13,802. Where, then, is the cause from that time, if not in this court? If here, then the nonpetition-ing party can perform the ministerial act of filing a copy of the record which enables this court to deal with the ■ cause. ■ Otherwise in the case of a motion for a preliminary injunction, or for a receiver in the state court, a respondent could delay the cause six months by filing his petition and bond, and refusing to file a copy of the record,— a construction which would make the act destructive of the most important rights.]

(orally.) No statute is to be read in the way contended for by the defendant’s counsel. Such a contention could only be supported by the most unambiguous enactment, and I fail to find anything of the sort in the act of congress in question. It never could have been intended by the national legislature to destroy the parties’ rights by an act which professedly extended their right of litigation in this court; and the illustration used in argument shows how completely the complainant in any suit would be at the mercy of his opponent if such were to be its construction. We recently decided in Taylor v. Rockefeller, [Case No. 13,802,] that the state court ceased to have jurisdiction upon the proper filing of the petition and bond in cases where the act of congress gave jurisdiction in the cause to the court. The result is, that the cause from that time is, in theory, in this court, and the only question is, whether, where the party who has the right neglects to file the copy to the detriment of the other party, the latter cannot do it for him. I have no doubt that he can, and therefore the motion must be denied. Motion denied.

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McKENNAN, Circuit Judge,

here said that to file on the first day means on or before. Defendant would not contend that he had no right to file -the copy of the record and rule the plaintiffs to declare before the day named in the act The language of the-statute meant merely to impose a limit of time within which the copy of -the record must be filed, not to forbid speedier action.

[S. C. Perkins, continuing, said: The act was intended to give the petitioner for removal the option to file on or before the day named. It was intended for his benefit; The judiciary act of 1789, § 12, (1 Stat. 79,) uses the same language; yet no case can be found in which the nonpetitioning party attempted to file the copy of the record. The intention of the act of 1789, and that of 1875, was that the cause should be begun anew in the federal circuit court. The established usage under the statute is proof of its meaning. The argument of inconven-[2]*2ienee should not be allowed to prevail over the words of the statute. Plaintiffs could not sue defendant on its bond if it filed a copy on the first Monday of next April, and this proves its right to delay the filing until that time.]

[A. Sidney Biddle, (and with him William Darlington,) against the motion. As soon as the petition and bond have been rightly filed, the state court loses jurisdiction, and any further proceedings by it are void. Taylor v. Rockefeller, Oase No. 13,802. Where, then, is the cause from that time, if not in this court? If here, then the nonpetition-ing party can perform the ministerial act of filing a copy of the record which enables this court to deal with the ■ cause. ■ Otherwise in the case of a motion for a preliminary injunction, or for a receiver in the state court, a respondent could delay the cause six months by filing his petition and bond, and refusing to file a copy of the record,— a construction which would make the act destructive of the most important rights.]

(orally.) No statute is to be read in the way contended for by the defendant’s counsel. Such a contention could only be supported by the most unambiguous enactment, and I fail to find anything of the sort in the act of congress in question. It never could have been intended by the national legislature to destroy the parties’ rights by an act which professedly extended their right of litigation in this court; and the illustration used in argument shows how completely the complainant in any suit would be at the mercy of his opponent if such were to be its construction. We recently decided in Taylor v. Rockefeller, [Case No. 13,802,] that the state court ceased to have jurisdiction upon the proper filing of the petition and bond in cases where the act of congress gave jurisdiction in the cause to the court. The result is, that the cause from that time is, in theory, in this court, and the only question is, whether, where the party who has the right neglects to file the copy to the detriment of the other party, the latter cannot do it for him. I have no doubt that he can, and therefore the motion must be denied. Motion denied.

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Bluebook (online)

2 F. Cas. 1, 1879 U.S. App. LEXIS 1702, Counsel Stack Legal Research, https://law.counselstack.com/opinion/arthur-v-new-england-mut-life-ins-uscirct-1879.