Houeye v. St. Martin Parish School Board

231 So. 2d 397, 255 La. 486, 1970 La. LEXIS 3935

• Court: Supreme Court of Louisiana
• Decided: February 27, 1970
• Docket: No. 50411
• Status: Published

Opinions

In re: Dr. Emmett Houeye, et al. applying for writs of certiorari and mandamus.

Application denied. The rilling complained of is correct.

See separate dissent of Summers, Justice.

SUMMERS, J., and BARHAM, J., are of the opinion that the writ should be granted. 28 U.S.C. § 1446(e) provides that “the defendant or defendants” upon filing a bond and complying with other procedural requirements- may effect a removal of a case from a state court to a federal ■court and thereby divest the state court of jurisdiction until a remand is had from the federal court. In the instant case an intervenor has attempted to remove a case from a state court to the federal court. An intervenor is without authority to effect such a removal. 28 U.S.C. § 1446(e) is inapplicable, and there has been neither a removal from the state court nor a divestiture of jurisdiction of that court. Only upon application for removal by “the defendant or defendants” will the provisions of 28 U.S.C. § 1446(e) inure and secure the jurisdiction of the federal courts. The state court should proceed with the case. Relator is entitled to relief under our supervisory jurisdiction.