Duncan v. Griffy

Court of Appeals of Kentucky

Duncan v. Griffy

8 Ky. Op. 610, 1876 Ky. LEXIS 150

DecidedFebruary 18, 1876

StatusPublished

This text of 8 Ky. Op. 610 (Duncan v. Griffy) is published on Counsel Stack Legal Research, covering Court of Appeals of Kentucky primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

Duncan v. Griffy, 8 Ky. Op. 610, 1876 Ky. LEXIS 150 (Ky. Ct. App. 1876).

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Opinion

Opinion by

Judge Lindsay:

This appeal is from an order of the court of common pleas, overruling the motion of the appellants to transfer the cause to the circuit court of the United States- for the district of Kentucky.

The motion was based upon the- provisions of section 639 of the Revised Statutes of the United States. The appellants are citizens and residents of states other than Kentucky; the appellees are citizens and residents of said last named state. It is claimed that the amount, in dispute, exclusive of costs, exceeds the sum of five hundred dollars.

In order to have a reversal in such a case, the petitioner must at the time of filing his petition offer in the state court good and sufficient surety for his entering in the circuit court of the United States on the first day of its session copies of the process against him, and of all pleadings, depositions, testimony and other proceedings in the cause, etc. The record before us does not show that appellants offered' any such surety, or in fact any surety at all. This condition precedent not having been complied with, the common pleas judge properly overruled the motion for the removal.

Further than this it was necessary that the appellants should malte it appear to the satisfaction of the court that the amount in dispute, exclusive of costs, exceeded the sum of five hundred dollars. The amended petition of appellees filed at the time the motion was made, showed that the amount in controvers3>- at the time appellants were made parties was less than $400. We have no bill of exceptions showing what evidence the court heard on this subject whilst the motion was pending, and we cannot, therefore, adjudge that it was made to appear that the amount in dispute brought the cause within the provisions of the act of congress.

Steele & Steele, for appellants. E. Q. Bullock, for appellees.

For these reasons, either of which is sufficient, the order overruling the motion for the removal is affirmed.

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Opinion by

Judge Lindsay:

This appeal is from an order of the court of common pleas, overruling the motion of the appellants to transfer the cause to the circuit court of the United States- for the district of Kentucky.

The motion was based upon the- provisions of section 639 of the Revised Statutes of the United States. The appellants are citizens and residents of states other than Kentucky; the appellees are citizens and residents of said last named state. It is claimed that the amount, in dispute, exclusive of costs, exceeds the sum of five hundred dollars.

In order to have a reversal in such a case, the petitioner must at the time of filing his petition offer in the state court good and sufficient surety for his entering in the circuit court of the United States on the first day of its session copies of the process against him, and of all pleadings, depositions, testimony and other proceedings in the cause, etc. The record before us does not show that appellants offered' any such surety, or in fact any surety at all. This condition precedent not having been complied with, the common pleas judge properly overruled the motion for the removal.

Further than this it was necessary that the appellants should malte it appear to the satisfaction of the court that the amount in dispute, exclusive of costs, exceeded the sum of five hundred dollars. The amended petition of appellees filed at the time the motion was made, showed that the amount in controvers3>- at the time appellants were made parties was less than $400. We have no bill of exceptions showing what evidence the court heard on this subject whilst the motion was pending, and we cannot, therefore, adjudge that it was made to appear that the amount in dispute brought the cause within the provisions of the act of congress.

Steele & Steele, for appellants. E. Q. Bullock, for appellees.

For these reasons, either of which is sufficient, the order overruling the motion for the removal is affirmed.

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Bluebook (online)

8 Ky. Op. 610, 1876 Ky. LEXIS 150, Counsel Stack Legal Research, https://law.counselstack.com/opinion/duncan-v-griffy-kyctapp-1876.