Martin v. Kanouse

16 F. Cas. 895, 1 Blatchf. 149

Opinion

THE COURT

vacated the rule to declare, and ordered the copy declaration on file to be taken off, on the ground that in an action removed from a state court under the act of congress in question, certified copies of the process or papers by which the suit was commenced in the state court, and of an order of that court for their transmission, should be sent to and entered in this court.

THE COURT decided at October term, 1850, in the case of Clarke v. Protection Ins. Co. [Case No. 2,860], that on the transmission of the process or declaration by which the suit was commenced in the state court, and the entry of the same in this court, the plaintiff must file a new declaration according to the practice of this court, the same as if a suit had been commenced by regular process in this court; and that until the filing of such declaration, the plaintiff could not enter a rule to compel the defendant to plead, or enter his default for not pleading.

[NOTE. Judgment was entered in the court of common pleas against -Kanouse. This was affirmed by the superior court. Prom this judgment he sued out a writ of error from the United States supreme court. A motion to dismiss the writ for want of jurisdiction was overruled. Ka-nouse v. Martin, 14 How. (55 U. S.) 23. At the next term of the court the judgment of the superior court was reversed upon the ground that the power of the court of common pleas to render judgment terminated upon the application of Kanouse for order removing case to the circuit court. 15 How. (56 U. S.) 198.]