Patten v. Cilley

U.S. Circuit Court for the District of New Hampshire

Patten v. Cilley

62 F. 497, 1894 U.S. App. LEXIS 2884

CourtU.S. Circuit Court for the District of New Hampshire

DecidedJuly 6, 1894

DocketNo. 400

StatusPublished

This text of 62 F. 497 (Patten v. Cilley) is published on Counsel Stack Legal Research, covering U.S. Circuit Court for the District of New Hampshire primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

Patten v. Cilley, 62 F. 497, 1894 U.S. App. LEXIS 2884 (circtdnh 1894).

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Opinion

ALDRICH, District Judge.

At the August term, 1892, this court remanded the probate proceeding in which Horatio Gl. Cilley was appellant in the state probate court, and which he removed to this court within the time in which a party may remove a proper cause as a matter of right. Such order was upon the ground that the court had no jurisdiction over the subject-matter of the controversy. Subsequently, the same party petitioned for the removal of the same controversy, on the ground of local prejudice; and such petition was dismissed December 11, 3893, for the same reasons, and the case is reported in Re Cilley, 58 Fed. 977. -This is an application or petition for writ of error from such order of dismissal, to the supreme court of tin* rutted States. In re Pennsylvania Co., 137 U. S. 451-154, 11 Sup. Ct. 141; Patten v. Cilley (1892) 1 C. C. A. 522, 50 Fed. 337; and In re Coe, 5 U. S. App. 6, 1 C. C. A. 326, and 49 Fed. 481, — would seem to settle this question against the petitioner. The case first cited was a petition for removal on the ground of local prejudice; and Mr. Justice Bradley, in denying the petition for mandamus, seems to have made no distinction between the dismissal of a petition for removal and a remanding order. In re Coe does not suggest any distinction, and, indeed, the opinion in that case is based upon the idea that the order is not a final decision of the cause, but rather a refusal to hear and decide, from which there is no appeal. The dismissal of a petition for removal is as much a. refusal to hear and decide as a remanding order, and we do not see our way clear to make the distinction vliich the petitioner claims. See, also, McLish v. Roff, 141 U. S. 661, 12 Sup. Ct. 118; Railroad Co. v. Roberts, 141 U. S. 690, 12 Sup. Ct. 123; Joy v. Adelbert College, 146 U. S. 355, 13 Sup. Ct. 186; Wauton v. De Wolf, 142 U. S. 138, 12 Sup. Ct. 173; American [498]*498Const. Co. v. Jacksonville, T. & K. W. Ry. Co., 148 U. S. 372, 382, 13 Sup. Ct. 758.

The writ is denied, and the petition dismissed.

COLT, Circuit Judge, concurs.

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ALDRICH, District Judge.

At the August term, 1892, this court remanded the probate proceeding in which Horatio Gl. Cilley was appellant in the state probate court, and which he removed to this court within the time in which a party may remove a proper cause as a matter of right. Such order was upon the ground that the court had no jurisdiction over the subject-matter of the controversy. Subsequently, the same party petitioned for the removal of the same controversy, on the ground of local prejudice; and such petition was dismissed December 11, 3893, for the same reasons, and the case is reported in Re Cilley, 58 Fed. 977. -This is an application or petition for writ of error from such order of dismissal, to the supreme court of tin* rutted States. In re Pennsylvania Co., 137 U. S. 451-154, 11 Sup. Ct. 141; Patten v. Cilley (1892) 1 C. C. A. 522, 50 Fed. 337; and In re Coe, 5 U. S. App. 6, 1 C. C. A. 326, and 49 Fed. 481, — would seem to settle this question against the petitioner. The case first cited was a petition for removal on the ground of local prejudice; and Mr. Justice Bradley, in denying the petition for mandamus, seems to have made no distinction between the dismissal of a petition for removal and a remanding order. In re Coe does not suggest any distinction, and, indeed, the opinion in that case is based upon the idea that the order is not a final decision of the cause, but rather a refusal to hear and decide, from which there is no appeal. The dismissal of a petition for removal is as much a. refusal to hear and decide as a remanding order, and we do not see our way clear to make the distinction vliich the petitioner claims. See, also, McLish v. Roff, 141 U. S. 661, 12 Sup. Ct. 118; Railroad Co. v. Roberts, 141 U. S. 690, 12 Sup. Ct. 123; Joy v. Adelbert College, 146 U. S. 355, 13 Sup. Ct. 186; Wauton v. De Wolf, 142 U. S. 138, 12 Sup. Ct. 173; American [498]*498Const. Co. v. Jacksonville, T. & K. W. Ry. Co., 148 U. S. 372, 382, 13 Sup. Ct. 758.

The writ is denied, and the petition dismissed.

COLT, Circuit Judge, concurs.

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62 F. 497, 1894 U.S. App. LEXIS 2884, Counsel Stack Legal Research, https://law.counselstack.com/opinion/patten-v-cilley-circtdnh-1894.

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