Ex parte Groom

40 Ala. 731

• Court: Supreme Court of Alabama
• Decided: June 15, 1867
• Status: Published

Opinions

A. J. "WALKER, C. J.

An application was made for tbe removal of a cause from the circuit court of Montgomery county, into the circuit court of the United States for tbe district where the suit is pending. The application was accompanied by an offer by tbe applicant of “good and sufficient surety for bis entering into tbe circuit court of tbe United States, to be beld for the middle district of the State of Alabama,” &c. Tbis application was madt under tbe 12th section of tbe judiciary act of 1789. Tbat act requires, tbat tbe removal should be made into tbe “ next circuit court to be beld in tbe district where tbe suit is pending.” Tbe removal is required to be made into tbe circuit court, designated eo nomine. Tbe district court of tbe United States is not tbe circuit court, although it may exercise tbe powers of a circuit court; and there is a clear distinction observed in tbe acts of congress, between the circuit courts and tbe district courts, notwithstanding they may exercise some of the powers of tbe circuit court. There is, therefore, no warrant in tbe law for tbe removal of tbis cause into tbe district court of tbe United States for tbe middle districtof Alabama. Tbe fifth circuit of tbe United States is composed of tbe “ districts of Georgia, Florida, Alabama, Mississippi, Louisiana, and Texas.” A circuit court for tbe district of Alabama is beld at Mobile, — a single place within tbe State. There is, therefore, a circuit court for tbe district of tbe State of Alabama. There is no such court as 'a circuit court for tbe middle district of Alabama. The petitioner, in offering to give surety for entering tbe cause in tbe circuit court for tbe middle district of tbe State of Alabama, did not offer to comply with tbe act of congress, which requires tbat be should offer good and sufficient surety for bis entering copies of tbe process, appearing, &c., in tbe circuit court for tbe district of tbe State of Alabama.

Tbe present application was properly overruled. If tbe application bad been accompanied with an offer to enter tbe process, appear, &c., in tbe circuit court for tbe district of tbe State of Alabama, it ought to have been granted.

Tbe application for a mandamus is refused.