Penrose v. Penrose

19 F. Cas. 197, 17 Blatchf. 332, 1879 U.S. App. LEXIS 2064

• Court: U.S. Circuit Court for the District of Eastern New York
• Decided: November 29, 1879
• Status: Published

Opinion

BENEDICT, District Judge.

This is a motion for an injunction to restrain the defendant from taking further proceedings in this cause in the state court, where, as it appears, the defendant has noticed the cause for trial at the November term. The facts stated in the affidavit read in opposition to this motion afford no ground upon which to deny the jurisdiction of this court No defect in the proceeding taken to remove the cause has been called to my attention, nor do the facts stated in regard to what has occurred in the cause afford any ground upon which to deny that jurisdiction of this court over the cause is complete. It appears, from the. moving papers, that the state court has denied the application of the defendant for an order directing the removal of the cause, but no copy of the opinion of the judge assigning his reasons for refusing the order of removal has been furnished ma I am, therefore, without information as to any fact upon which to determine that the cause has not been removed to this court It is well settled, that no order of the state court directing the removal is necessary, and, as before stated, no defect in the proceedings taken to effect the removal has been pointed out. I cannot, therefore, deny this motion upon the ground of want of jurisdiction over the cause. I must, however, deny it upon the ground that the injunction asked for is not required to uphold the jurisdiction of this court over the cause. The practice in cases like this has been settled for this court, in the case of Fisk v. Union Pacific R. Co. [Case No. 4,827], where an application similar to the present was denied. Upon the authority of that case the present motion must be denied.