Wanner v. Bissinger

210 F. 96, 1913 U.S. Dist. LEXIS 1034

Opinion

BEAN, District Judge

(orally).

This case was submitted on motion to remand. The action was brought originally in the state court. The defendant, being a nonresident, filed a petition and bond for removal-to this court, and the cause was removed. A motion is now made to remand because no written notice of the filing of the bond and petition was given plaintiff. Section 29 of the Judicial Code (Act March 3, 1911, c. 231, 36 Stat. 1095 [U. S. Comp. St. Supp. 1911, p. 142]) re.quires written notice of a petition and bond for removal to be given to the adverse party before the same are filed. Judge Van Fleet, in a very well-considered opinion in Goins v. Southern Pac. Co. (D. C.) 198 Fed. 432, held that this provision is mandatory and jurisdictional, and that the failure to give written notice is ground for remanding the case to the state court. In a recent case in the Court of Appeals for the Sixth Circuit (U. S. v. Sessions, 205 Fed. 502, 123 C. C. A. 570), this question is referred to, and, while not necessary to a decision of the case, the court does in its opinion say that this provision of the statute is either mandatory or inoperative and intimates- very strongly that it is a mandatory provision and jurisdictional.

I conclude, therefore, that failure to give written notice as required is ground for remanding the case to the state court, and an order will be made to that effect.