Galvin v. Boutwell

U.S. Circuit Court for the District of Southern New York

Galvin v. Boutwell

9 F. Cas. 1139, 9 Blatchf. 470, 1872 U.S. App. LEXIS 1431

CourtU.S. Circuit Court for the District of Southern New York

DecidedMarch 8, 1872

DocketCase No. 5,207

StatusPublished

Cited by3 cases

This text of 9 F. Cas. 1139 (Galvin v. Boutwell) is published on Counsel Stack Legal Research, covering U.S. Circuit Court for the District of Southern New York primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

Galvin v. Boutwell, 9 F. Cas. 1139, 9 Blatchf. 470, 1872 U.S. App. LEXIS 1431 (circtsdny 1872).

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Opinion

BTjATCHFOKD, District Judge.

As it is not denied, on this motion, that the plaintiff is an alien, 1 think the case ought to be remanded to the state court. It was removed here under the 12th section of the act of September 24, 1789) (1 Stat. 79), on the allegation that the plaintiff was a citizen of New York, and the defendant a citizen of Massachusetts. I do not think it falls within the principle of Dennistoun v. Draper [Case No. 3,804], and Wood v. Matthews [Id. 17,955]. If the question of the alienage of the plaintiff were seriously contested, it would be proper to retain the case for a trial of that question, on the merits, on formal issues in the cause. There can be no doubt of the power of this court to remand the cause, if it sees that there is no jurisdiction. Witetiqui v. D’Arbel, 9 Pet. [34 U. S.] 692, 701. The exercise of that power at this stage of the cause is a question of discretion; and, in this case, I think a proper exercise of such discretion requires that the case be remanded. The motion is granted, on condition that the plaintiff stipulates that the defendant have thirty days’ time to answer the complaint, after a certified copy of the order herein shall have been filed in the state court.

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BTjATCHFOKD, District Judge.

As it is not denied, on this motion, that the plaintiff is an alien, 1 think the case ought to be remanded to the state court. It was removed here under the 12th section of the act of September 24, 1789) (1 Stat. 79), on the allegation that the plaintiff was a citizen of New York, and the defendant a citizen of Massachusetts. I do not think it falls within the principle of Dennistoun v. Draper [Case No. 3,804], and Wood v. Matthews [Id. 17,955]. If the question of the alienage of the plaintiff were seriously contested, it would be proper to retain the case for a trial of that question, on the merits, on formal issues in the cause. There can be no doubt of the power of this court to remand the cause, if it sees that there is no jurisdiction. Witetiqui v. D’Arbel, 9 Pet. [34 U. S.] 692, 701. The exercise of that power at this stage of the cause is a question of discretion; and, in this case, I think a proper exercise of such discretion requires that the case be remanded. The motion is granted, on condition that the plaintiff stipulates that the defendant have thirty days’ time to answer the complaint, after a certified copy of the order herein shall have been filed in the state court.

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Bluebook (online)

9 F. Cas. 1139, 9 Blatchf. 470, 1872 U.S. App. LEXIS 1431, Counsel Stack Legal Research, https://law.counselstack.com/opinion/galvin-v-boutwell-circtsdny-1872.

Opinion

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