Boggs v. Willard

3 F. Cas. 805, 3 Biss. 256

• Court: U.S. Circuit Court for the Northern District of Illnois
• Decided: June 15, 1872
• Status: Published

Opinion

BLODGETT, District Judge.

Complainant now asks leave to docket the cause in this court, notwithstanding the action of the superior court in the premises, on the ground that he has fully complied with the law and is entitled to a transfer of the case into this court, and we concede that his application would be entitled to a favorable consideration were it not for the fact that the case seems to have been fully disposed of by the state court prior to the making of this application.

The act of March 2,1867, is an amendment to an act for the removal of causes, in certain cases, in state courts, approved July 27, 1866 (14 Stat. 306), which reads as follows: -‘If in any suit already commenced, or that may hereafter be commenced, in any state court against an alien, or by a citizen of the state in which the suit is brought against a citizen of another state, and the matter in dispute exceeds the sum of five hundred dollars, exclusive of costs, it be made to appear to the satisfaction of the court, a citizen of the state in which the suit is brought, is or shall be a defendant, and if the suit, so far as relates to the alien defendant, or to the defendant who is the citizen of a state other than that in which the suit is brought, is or has been instituted or prosecuted for the purpose of restraining or enjoining him, or if the suit is one in which there can be a final determination of the controversy, so far as it concerns him, without the presence of the other defendants as parties in the cause, then, and in every such case, the alien defendant, or the defendant who is a citizen of a state other than that in which the suit is brought, may at any time before the trial or final hearing of the cause, file a petition for the removal of the cause as against him into the next circuit court of the United States, to be held in the district where the suit is pending, and offer good and sufficient surety for his entering in such court on the first day of its session, copies of said process against him, and of ail pleadings, depositions, testimony, and other proceedings in said cause affecting or concerning him, and also for his there appearing and entering special bail in the cause, if special bail was originally requisite therein, and it shall be thereupon the duty of the state court to accept the surety, and proceed no further in the cause as against the defendant so applying for its removal.”

It will thus be seen that the right to transfer a cause from the state to the federal court must be exercised before the trial or final hearing of the cause has transpired in the state court. An examination of the record in this case shows that the superior court had proceeded to hear the issues made by the bill, answers and replication, and had adjudicated thereon; that an appeal had been taken by part of the defendants to the supreme court of the state, where the decree of the superior court was reversed, and the cause remanded to be dismissed. This seems to me to be dearly a final bearing of the case. It ■was competent for the supreme court, under the practice of this state, to have dismissed the bill in the supreme court; but instead of doing so, they merely reversed the decree of the superior court, and ordered the case back to the superior court, to be there dismissed in conformity with their opinion. So that the superior court had no alternative, under the mandate of the supreme court, than to dismiss the bill in accordance therewith. The motion for a transfer of the case was not made until after the case had been finally heard in both tribunals, and it dearly seems to me that the application for a transfer came too late.

¡NOTE [from original report]. On the dismissal of the hill by the superior court, the complainant sued out a writ of error from the supreme court, and the cause was submitted at the September term, 1873, and is now pending. For numerous authorities on this question of removal from state courts, consult, also, Ak-erly v. Tilas [Cases Isos. 119, 120]; Kingsbury v. Kingsbury [Id. 7,817].

It was riot the intention of congress that a party dissatisfied with an adjudication in the state courts should have the right, after a decision against him, to remove the cause into the federal courts, and there have a rehearing. If the case was such an one as to give the party a right to a writ of error to the supreme court of the United States, under thé provisions of the 25th section of the judiciary act [1 Stat. 85], a review may be had in that manner; but it seems dear to me that after a case has had a hearing before the state court and been finally disposed of, the federal courts cannot take jurisdiction of it, except as is provided in the 25th section.

Other objections to this court taking jurisdiction of the matter were also urged by the defendants; but as this point seems to me condusive, I have not thought proper to allude to them. Application denied.