Dickinson, J.
This action to recover damages for a personal injury caused by the alleged negligence of the defendant was commenced in the district court of this state. Before the time for answering the complaint had expired, the defendant filed in the office of the clerk of that court, in the proper county, a petition and bond [527]*527for a removal of the cause to the circuit court of the United States; it being alleged in such petition that the defendant was a foreign (Wisconsin) corporation, and the plaintiff a citizen of this state. No question is here presented as to the petition and bond being sufficient in form for the purposes of effecting a removal of the cause pursuant to the provisions of the law of congress of March 3, 1875, ch. 137, as amended by the act of August 13, 1888, ch. 866, if the proper practice was pursued. The clerk of the district court filed the petition and bond on the 1st day of November, and at the request of the defendant made a certified copy of the record of the cause in the district court, which was filed in the office of the clerk of the circuit court on the 3d day of November; and the defendant then filed in the latter court its answer to the complaint. The time for answering expired on the following day. The petition and bond for removal were not presented to the judge of the state court, nor is it shown that his attention was called to the fact that they had been filed in the clerk’s office. It appears that no notice of such filing was served upon the plaintiff. On the 7th day of November, upon affidavit presented to the state court on the part of the plaintiff, alleging the default of the defendant to appear in the action, or to demur to or answer the complaint, that court proceeded in the cause as upon default. An order of reference was made, the cause was heard before the referee upon evidence presented on the part of the plaintiff, and upon the report of the referee judgment was entered against the defendant for the recovery of about $22,000. A motion addressed to the district court to set aside the judgment was refused. The defendant appealed both from the order refusing to set aside the judgment and also from the judgment. Both appeals present the same questions, were argued together, and what we shall say will be equally applicable to both appeals, unless otherwise indicated.
The real question to be decided is whether, by the proceedings to which we have referred, the jurisdiction of the state court was suspended or terminated; or, in other words, whether such proceedings were effectual to remove the cause from the state to the federal court. If such was the case, then the judgment was void for want of jurisdiction, and should have been set aside on motion, and the appellant [528]*528should prevail in both appeals. The respondent cannot be sustained in his contention that by the motion to vacate the defendant submitted to the jurisdiction of the court, and so made valid the judgment, even though it was rendered without jurisdiction. Godfrey v. Valentine, 39 Minn. 336, (40 N. W. Rep. 163.) Nor can it affect the validity of the judgment that the case was subsequently remanded to.the state court, it being considered by the circuit court that the attempted removal had not been effectual. Of course, that decision of the circuit court is to be regarded as authority upon the question whether the proceedings for removal were effectual; but the remanding of the cause had no retroactive effect, as respects the jurisdiction of the state court prior thereto. The briefs contain extended arguments upon the question whether this defendant stood before our courts as a foreign or a domestic corporation, a nonresident or a resident of this state, upon which fact its right to remove the cause to the circuit court depended. The district court was not required to pass upon that question. It had no power to do so, and it is not a matter involved in these appeals. The petition for removal stated the fact to be that the defendant was a foreign corporation, and nonresident of this state. No question is suggested as to the petition showing on its face, if the facts alleged were true, that the defendant was entitled to have the cause transferred to the federal court, but the plaintiff, in effect, disputes the facts alleged in the petition. It has been settled by the decisions of the supreme court of the United States that, where the petition, considered in connection with the record of the cause, shows facts entitling the petitioner to a removal, (the law being complied with in other respects,) the cause is effectually removed, and any controversy which may arise upon the facts alleged by the petition must be determined in the federal court. Burlington, C. R. & N. Ry. Co. v. Dunn, 122 U. S. 513, (7 Sup. Ct. Rep. 1262,) and cases cited. The stipulation for the entry of a judgment in the circuit remanding the cause in accordance with the decision of that court does not affect the question here presented.
We come now to consider the more serious question, whether the mere filing in the office of the clerk of the state court in vacation, or when the court is not in session, of a petition and bond, which are [529]*529on their face sufficient, the petitioner doing nothing further to call the attention of the court to this fact, or to invoke a suspension of the exercise of its jurisdiction, is effectual ipso facto to arrest or terminate that jurisdiction. Is that all that the statute contemplates? The question has arisen in the circuit courts of the United States, but the decisions have been conflicting. It will suffice to cite Osgood v. Chicago, D. & V. R. R. Co., 6 Biss. 330; Shedd v. Fuller, 36 Fed. Rep. 609; and Roberts v. Chicago, St. P., M. & O. Ry. Co., 45 Fed. Rep. 433. The case last cited is that under consideration. It was remanded to the state court because it was considered that the mere filing of the petition and bond in the office of the clerk of the state court (the proceeding not having been brought to the attention of the judge of that court) was not effectual to transfer the cause. We do not think that the question has been presented before or decided by the supreme court of the United States. Language may be found in the opinions of that court which, if it had been used with reference to the question here presented, would have an important bearing upon it; but, having been employed in treating of other questions, it cannot be regarded as expressing any opinion of that court upon the precise matter now before us. However, the question to be decided may be simplified by the statement of some propositions which may be regarded as settled by the decisions of that court. The right to ■ remove a cause into the federal court, in the cases specified in the statute, is absolute; and the moving party may, by pursuing the course prescribed therein, effectually remove the cause without any consent or order or affirmative action on the part of the state court. If the petitioner complies with the requirements of the statute, and states in his petition facts which, if true, show, in connection with the record of the case, that he is entitled to a removal, the jurisdiction of the state court is thereby arrested, even though that court should refuse to recognize the righfrof removal. Burlington, C. R. & N. Ry. Co. v. Dunn, supra; Stone v. South Carolina, 117 U. S. 430, (6 Sup. Ct. Rep. 799;) Marshall v.
Free access — add to your briefcase to read the full text and ask questions with AI
Dickinson, J.
This action to recover damages for a personal injury caused by the alleged negligence of the defendant was commenced in the district court of this state. Before the time for answering the complaint had expired, the defendant filed in the office of the clerk of that court, in the proper county, a petition and bond [527]*527for a removal of the cause to the circuit court of the United States; it being alleged in such petition that the defendant was a foreign (Wisconsin) corporation, and the plaintiff a citizen of this state. No question is here presented as to the petition and bond being sufficient in form for the purposes of effecting a removal of the cause pursuant to the provisions of the law of congress of March 3, 1875, ch. 137, as amended by the act of August 13, 1888, ch. 866, if the proper practice was pursued. The clerk of the district court filed the petition and bond on the 1st day of November, and at the request of the defendant made a certified copy of the record of the cause in the district court, which was filed in the office of the clerk of the circuit court on the 3d day of November; and the defendant then filed in the latter court its answer to the complaint. The time for answering expired on the following day. The petition and bond for removal were not presented to the judge of the state court, nor is it shown that his attention was called to the fact that they had been filed in the clerk’s office. It appears that no notice of such filing was served upon the plaintiff. On the 7th day of November, upon affidavit presented to the state court on the part of the plaintiff, alleging the default of the defendant to appear in the action, or to demur to or answer the complaint, that court proceeded in the cause as upon default. An order of reference was made, the cause was heard before the referee upon evidence presented on the part of the plaintiff, and upon the report of the referee judgment was entered against the defendant for the recovery of about $22,000. A motion addressed to the district court to set aside the judgment was refused. The defendant appealed both from the order refusing to set aside the judgment and also from the judgment. Both appeals present the same questions, were argued together, and what we shall say will be equally applicable to both appeals, unless otherwise indicated.
The real question to be decided is whether, by the proceedings to which we have referred, the jurisdiction of the state court was suspended or terminated; or, in other words, whether such proceedings were effectual to remove the cause from the state to the federal court. If such was the case, then the judgment was void for want of jurisdiction, and should have been set aside on motion, and the appellant [528]*528should prevail in both appeals. The respondent cannot be sustained in his contention that by the motion to vacate the defendant submitted to the jurisdiction of the court, and so made valid the judgment, even though it was rendered without jurisdiction. Godfrey v. Valentine, 39 Minn. 336, (40 N. W. Rep. 163.) Nor can it affect the validity of the judgment that the case was subsequently remanded to.the state court, it being considered by the circuit court that the attempted removal had not been effectual. Of course, that decision of the circuit court is to be regarded as authority upon the question whether the proceedings for removal were effectual; but the remanding of the cause had no retroactive effect, as respects the jurisdiction of the state court prior thereto. The briefs contain extended arguments upon the question whether this defendant stood before our courts as a foreign or a domestic corporation, a nonresident or a resident of this state, upon which fact its right to remove the cause to the circuit court depended. The district court was not required to pass upon that question. It had no power to do so, and it is not a matter involved in these appeals. The petition for removal stated the fact to be that the defendant was a foreign corporation, and nonresident of this state. No question is suggested as to the petition showing on its face, if the facts alleged were true, that the defendant was entitled to have the cause transferred to the federal court, but the plaintiff, in effect, disputes the facts alleged in the petition. It has been settled by the decisions of the supreme court of the United States that, where the petition, considered in connection with the record of the cause, shows facts entitling the petitioner to a removal, (the law being complied with in other respects,) the cause is effectually removed, and any controversy which may arise upon the facts alleged by the petition must be determined in the federal court. Burlington, C. R. & N. Ry. Co. v. Dunn, 122 U. S. 513, (7 Sup. Ct. Rep. 1262,) and cases cited. The stipulation for the entry of a judgment in the circuit remanding the cause in accordance with the decision of that court does not affect the question here presented.
We come now to consider the more serious question, whether the mere filing in the office of the clerk of the state court in vacation, or when the court is not in session, of a petition and bond, which are [529]*529on their face sufficient, the petitioner doing nothing further to call the attention of the court to this fact, or to invoke a suspension of the exercise of its jurisdiction, is effectual ipso facto to arrest or terminate that jurisdiction. Is that all that the statute contemplates? The question has arisen in the circuit courts of the United States, but the decisions have been conflicting. It will suffice to cite Osgood v. Chicago, D. & V. R. R. Co., 6 Biss. 330; Shedd v. Fuller, 36 Fed. Rep. 609; and Roberts v. Chicago, St. P., M. & O. Ry. Co., 45 Fed. Rep. 433. The case last cited is that under consideration. It was remanded to the state court because it was considered that the mere filing of the petition and bond in the office of the clerk of the state court (the proceeding not having been brought to the attention of the judge of that court) was not effectual to transfer the cause. We do not think that the question has been presented before or decided by the supreme court of the United States. Language may be found in the opinions of that court which, if it had been used with reference to the question here presented, would have an important bearing upon it; but, having been employed in treating of other questions, it cannot be regarded as expressing any opinion of that court upon the precise matter now before us. However, the question to be decided may be simplified by the statement of some propositions which may be regarded as settled by the decisions of that court. The right to ■ remove a cause into the federal court, in the cases specified in the statute, is absolute; and the moving party may, by pursuing the course prescribed therein, effectually remove the cause without any consent or order or affirmative action on the part of the state court. If the petitioner complies with the requirements of the statute, and states in his petition facts which, if true, show, in connection with the record of the case, that he is entitled to a removal, the jurisdiction of the state court is thereby arrested, even though that court should refuse to recognize the righfrof removal. Burlington, C. R. & N. Ry. Co. v. Dunn, supra; Stone v. South Carolina, 117 U. S. 430, (6 Sup. Ct. Rep. 799;) Marshall v. Holmes, 141 U. S. 589, (12 Sup. Ct. Rep. 62;) National Steamship Co. v. Tugman, 106 U. S. 118, (1 Sup. Ct. Rep. 58.) It is conceded in this ease that no order of the state court was necessary to effect the removal. It may be added, [530]*530by way of possible qualification to the broad propositions above stated, that it does not seem to have been finally determined whether the state court has any authority to pass upon the sufficiency of the bond filed by the petitioner, either as respects its amount or the sufficiency of the surety, and to refuse to accept it, and to suspend the exercise of its jurisdiction, if the bond should be found to be in fact insufficient. But the tendency of the decisions to which we have already referred renders it probable that it will be decided that the court has no such authority, but that, if the bond is good in form, its sufficiency can only be questioned and passed upon in the circuit court. In the Removal Cases, 100 U. S. 457, the court declined to pass upon the question, it being found to be unnecessary. Nor do we find it necessary to consider the question in this case. The bond was proper in form, and the state court never considered whether it was in fact sufficient. For the purposes of this decision, we assume that the court had no right to determine anything in respect to the bond, save as to its sufficiency on its face. This being assumed, it may be stated broadly that, if the attention of the state court in this case had been called to the fact of the filing of the petition and bond, and it had been moved or asked thereupon to cease to proceed in the cause, it would have been bound to do so.
The statute providing how a removal may be effected is, and must necessarily be, somewhat arbitrary. Whatever it in terms requires to be done, or what it is to be construed as contemplating, is necessary. From the statute itself, keeping in mind the nature of the subject and the obvious purposes sought to be accomplished, we seek to discover what is required to be done by one who would avail himself of its benefits. We at once perceive that this is very briefly expressed; and the general principle of construction is not to be lost sight of, which requires that meaning and effect be given, if possible, to every expression found in the law. So reading the statute, we are inclined to the opinion that it is not enough for the moving party to merely file his petition and bond in the office of the clerk of the state court in vacation, or when the court is not in session, but that he should also in some way advise the court of this proceeding, before he can justly claim to have stayed or terminated the jurisdic[531]*531tion of that court, and to have effected a removal of the cause to the federal court. Prior to the proceedings in question, the state court had full jurisdiction in the cause. It not only had authority, but it was its duty, to proceed therein to hearing and judgment. The purpose to which the statute is directed is of a double nature. It is directed to the end of arresting — terminating—the jurisdiction of the state court, divesting that court of its authority to proceed, as well as of conferring upon the United States court jurisdiction in the cause. It contemplates as one of the principal ends in view that the state court shall cease to exercise its functions; but this it cannot be expected to do until in some way it is informed of the act of the party, which alone divests it of its jurisdiction, and converts its duty to proceed into a duty to “proceed no further in such suit.” And the language of the statute may well be regarded as disclosing the intention that the filing of the petition and bond for a removal should be in some manner brought to the attention of the court, in order that it might discontinue all further proceedings. Following the provision for making and filing a petition and bond in the state court, the statute declares: “It shall then be the duty of the state court to accept said petition and bond, and proceed no further in such suit.” It is contemplated that the court shall act intelligently upon the petition and bond; not necessarily by a formal approval of the same, if found to be sufficient upon their face, nor perhaps by the making of any formal order. But its jurisdiction and duty to proceed are not affected by the filing of any petition and bond, however defective, but only by the filing of such as are, on their face, legally sufficient. Burlington, C. R. & N. Ry. Co. v. Dunn, 122 U. S. 516, (7 Sup. Ct. Rep. 1262;) Stone v. South Carolina, 117 U. S. 430-432, (6 Sup. Ct. Rep. 799.) Hence the court ought in every case to examine the petition and bond, to see whether they are legally sufficient, in order that, if found to be so, (but not otherwise,) it may forbear to proceed further in the cause. The duty of the court, declared in the statute, to “accept” the petition and bond, (being sufficient on their face,) and to cease to further exercise its functions, implies that the court is to act upon them, which it cannot do until it is advised of the fact of their being filed; nor can it act intelli[532]*532gently until it shall have examined the record thus made, to see whether the requirements of the law have been complied with. If it had been intended that the mere filing of the papers with the clerk, who is only a ministerial officer of the court, should be sufficient of itself to stay the proceedings of the court, why was it added to the provision for filing that the court should accept the petition and bond, and cease its proceedings ? This implies something more than had been expressed in the provision for filing such papers. If the law contemplates that the proceedings for removal shall be brought to the attention of the court in order that it may thus forbear, it is reasonable to say that the moving party — the petitioner who seeks by such means to put an end to proceedings legally pending in the state court — should see to it that this is done. If he presents his petition and bond to the court, and they are filed under its direction, that would be sufficient. But when, as probably must be deemed permissible, he files them with the clerk in vacation, we hold it to be necessary for him also to direct the attention of the court to the fact, in order that the obvious purposes of the law may be accomplished by the suspension of further proceedings in that court. The mere filing with the clerk does not, in itself, inform the court of the proceeding. The record in this case illustrates how that might be done, and yet the state court proceed to final judgment in the cause without any knowledge on the part of the court, or of the counsel representing the adverse party, that proceedings had been taken which, if effectual, had divested the court of its jurisdiction, and transferred the cause to another tribunal. We will add that our minds are not free from doubt as to the correctness of the conclusion here expressed upon the question principally discussed. However, our decision is not final, and it will doubtless be reviewed, and the question settled, in the court of last resort.
Judgment and order affirmed.
Mitchell, J., dissenting.
(Opinion published 51 N. W. Rep. 478.)