"This right of removal is statutory. Before a party can avail himself of it he must show upon the record that his is a case which comes within the provisions of the statute. His petition for removal, when filed, becomes a part of the record in the cause. It should state facts, which, taken in connection with such as already appear, entitle him to the transfer. If he fails in this, he has not, in law, shown to the court that it cannot' proceeu' further with the cause.' Having once acquired jurisdiction, the court may proceed until it is judicially informed that its power over the cause has been suspendeu. * * * This certainly is not stating affirmatively that such was his citizenship when the suit was commenced. The court had the right to take the case as made by the party himself, and not inquire further. If that was not sufficient to oust the jurisdiction, there was no reason why the court might not proceed with the cause." Ins. Co. v. Pechner, 95 U. S. 185, 186. "Holding, as we do, that a state court is not bound to surrender its jurisdiction upon a petition for removal until, at least, a petition is filed, which, upon its face, shows the right of the petitioner to the transfer, it was not error for the court to retain these causes." Amory v. Amory, 95 U. S. 187. "A petition for the removal of suit from a state court to a federal court is insutficient, unless it sets forth in due form such as is required in good pleading. the essential facts not otherwise appearing in the case, which, under the act of congress, are conditions precedent to the change of jurisdiction." Gold Washing d': Water Co. v. Keyes, 96 U. S. 199. "'Ve fully recognize the principle heretofore asserted in many cases, that the state court is not required to let go its jurisllictioll until a case is made which, upon its face, shows that the [J2titioner can rcmo\'e the'cause as a matter of right." Removal Cases, 100 U. S. 474.
As the juriHdiction of the state court has never been lawfully divested, it follows that this court has never acquired jurisdiction. The case has never been removed from the state court to this court. It cannot, therefore, be remanded, but all proceedings in this court should be dismissed, and such an order will be entered, with costs.
See Glover v. Shepl)erd, 15 FED TIEP. 833.
(Circuit Court, lV. D. Te.w8.
Congress h:1S not conferred power upon the district :111(1 circuit courts of the Unitecl t\tates to m:1ke rules the mode of taking testimony.
UmCL'IT COURT-RULES AS TO TAKIXG TESTDroXY,
S,UIE-DF.POSITIOXS TAKEX ACCOHDl:>G TO t\T,\TE
Depositions tal,en according to the mode prescrihed b.\' the ,t:1tutes of a state, for the takin!'; of (lepos:tio!b are not admi,;sihle in eVidence, in a circuit court of the United States, whell the statel:1w !';O\'ernin:! the sallle conflicts with the provisions of the act of congrcss in relation thereto.
'jIotion to Suppress Depositions. A. J. Em1l8, for motion. Walton ((. Hill, opposed.
TURNER, J. These depositions were take.l1 according to the mode prescribed by the statutes of this state, and the motion is based upon the proposition that such mode of taking is not lawful in the courts of the United States. In opposition to the motion it is contended (1) that section 9140£ the Hevised Statutes authorizes it; and (2) that section 918 authorizes the several circuit and district courts to make rules, etc., and regulate their own practice as may be necessary or connmient, etc.; and (3) that this court has, by virtue of the power given, adopted the mode prescribed by the state statutes for the taking of depositions in this court. In 1872 there were certain rules adopted and entered of record in this court. Rule No.1 reads: '''1'he mode of proceeding prescribed by the laws of Texas, where they do not conflict with the laws of the United States, or a rule of the supreme court of the United States, or of this court, are adopted." Rule No. 15 "provides commissions to take examination of witnesses and depositions, and all testimony in a cause may be taken in the manner and subject to the regulations, so far as they are applicable, mutandis, prescribed by the laws of Texas." I will first consider these rules. It is evident that it was not thought that by rule No.1 provision had been made for taking depositions. The terms used, llOwever, are: "Proceedings prescribed by the laws of Texas." If this was thobght sufficient, then rule No. 15 WflB unnecessary. What does rule 15 undertake to do? I answer, nothing affirmatively. The depositions must be taken subject to the regulations, and (mutt/tis mutandis) the necessary changes being made. 'Yhat regulations, and what are the necessary changes? I ans\ver the provisions of the United States statute, viz., sections SOo and .SOO. This last section provides that Ii, dedimus potestatem may issue when it becomes necessary to prevent a failure ·01' delay of justice, and the necessity must be made to appear to the court. A commission is not granted to any and all litigants, but it only issues when the necessity is made to appear. rrhis is one necessary change: By the laws of Texas depositions may be taken in any county, even III the county where the suit is pending, without reference to the distance from the place of trial. 'Will it be said that depositions may be taken to be read in the federal courts, where the witness resides within 100 miles of the place of trial? I think not. This, then, is another necessary change. Others could be suggested, but it is not deemed necessary. The law of congress, section SG1, provides that "the of proof in the trial of actions at common law shall be by oral test!many and examination of witnesses in open court, except as hereinafter 1)l'Ovided." Sec"tion SG2 provides for the morle of proof in cases of a nil ·admiralty, and provides that it shall be in accordance ';\"ith the prescribed by the supreme conrt, except as therein specially provided for.
Tlwn came the exceptions, sections 863 and 866, and these are the only ex.ceptions in the statutes. So carefully did congress guard the rights of litigants to have the witnesses before the court and jury; ann the value of this mode of eliciting evidence is understood by every practitioner. It is urged that by virtue of section 918 this court was authorized to make rules, etc., and that unjer that authority this court has adopted rules Nos. 1 and 15, and that is sufficient for the purpose. Let us see what congress has done by way of conferring power to make rules touching the mode of taking evidence. In section 917 authority is conferred upon the supreme court to prescribe from time to time the forms of writs and other process, the mode of f :aming and filing proceedings and pleadings, of taking and obtaining evidence, etc., in suits in equity and admiralty. In this section it will be noticed that the power to prescribe the mode of take ing and obtnining evidence is specifically conferred, while in section under which it is claimed the same power was conferred upon the district and circuit courts, all mention of the mode of taking and obtaining evidwl'lce is omitted, and this is the distinguishing feature in these two sections so far as granting of power is concerned. I hold that congress thought it necessary, by specific mention, to grant the supreme court the power touching matters of evidence, and I conclude that congress did not believe the other terms would confer the power. Dearing this in mind, we will now look at the nex.t section, viz., 1)18. This is the section that, it is contended, confers upon this court authority to make rules Nos. 1 and 15. The reply is, congress withheld the very power can' ended for; or, in other words, declined to give it, by leaving out of this section the words deemed necessary in the preceding section to confer this power upon the snpreme court. We are not to assume that words of a statute are unnecessary; and if necessary to be used in section !J17, these same words, or words of the same import, were necessary to confer the same power in sectIOn 918. I conclude that congress intended to confer a power upon the snpreme court which they purposely withheld from the district and circuit courts. There was no necessity for any rules upon the snlij.ect; the law of section 861 had secured a valna ble right, with the two exceptions provided for. It is again urged that section 914 gives the right; that this section was enacted in and was not a part of the law at the time sections 861, and SG6 were enacted. True, but since 1872 all the laws have been revised, and we have now the Revision of 1875, containing all those various sections, and they should be construed as one act. This section-914-·provilles that "the practice, pleadings, etc., in cases other than in equity and admiralty, shall conform, as near as may be, to the practice, pleadings, etc., of the state courts." It is claimed that the word "practice" is broad enough to include the mode and manner of tahmg depositions.
RANDALL V. VENABLE.
If this be so, then another exception nas been added to section S6l. Unless congress intended by the term "practice," as u8ed in the law, to ingraft an add;tional exception upon section 861, it should not have that as the taking of testimony by depodition is in derogation of common right. This brings us again to the conslLteration of the word "practice," as used in the laws of congress. As has been stated, conglless thought it necessary, when conferring power upon the supreme court to make rules governing the cO'Urts of admiralty and in equity causes, to not only confer the power to regulate the whole practice in those courts, but also by specific terms to provide that it might provide "the mode of taking and obtaining evide,l1c" in those courts." There was a necessity for this, as tile l.aw did not fully pl"ovide the mode and manner of so doing, and if the power to regulate the whole practice did confer the contended for, then the specific power to "provide for the muue of taking and obtaining evidence," found in the same section, viz., section 917, was superfluous. I conclude, therefore, that the word "practice" does not confer the right contended for. And when, in this connection, we consider the provisions of section 918, where the word "practice" is used, that it has no larger signification than in the section immediately preceding it. And in scction 918 the authority is not given to prescribe the mode of taking and obtaining evidence. I conclude, also, that the word "practice," as used in section 914, has no broader significance than when used in section 917 or 918. There is an obvious reason for this, as provision was made for the taking of evidence in the circuit and district courts, with the exceptions contained in sections 863 and 8U6. What authority or control would this court have over a person as commissioner that it had not empowered to take the deposition? Could the courts of the United States punish a witness for perjury committed before an officer not authorized to take depositions to be used in the federal courts? The answer is furnished by the question. Uniformity in the mode and manner of taking evidence is desirable, and by proceeding under the act of c0l1greS'S this end is attained. On the other hand, tbe modes would be as different as the different state statutes upon the subject. In the case of B.ell v. 111orrison, 1 Pet. in speaking upon the question of depoSItions, the court says, when evidence is sought to be admitted contrary to the rules of the common law, something more than a mere presumption should exist that it was rightfully taken. Judge BLATCHFORD says, (see 14 Blatchf. U. C. 102:)
.. It may well be doubled whether there is anything in section 914 whbh applies to the subject of the evidence of witnesses, either as to its character, COl1.Jpetency, or the mode of taking it. The expression' practice,' etc., is well satIslied without introducing in it the SUbject of evidence," e t c . _
The same view of the law is taken by Judge CHOATE, who succeeded Judge BLATCHFORD. See 4: FED. REP. 714. In the case of
Sage v. Lousky, Judge SWING J.olds the same doctrine. Other author'ities might be cited that sustain this view of the question, but it is deemed unnecessary. The statutes of the United States have provided for the mode and manner of taking depositions. In the case of Connecticut J1Jutnul Life Ins. Co. v. Schaefer, (see 94 U. S. 458,) :Mr. Justice BRADLEi' says: "The la\vs of the state are only to be regarclell as rules of decision in the 'courts of the United where the constitution, t,reaties, or statutes of the United States have not otherwise p·rovicled. "'hen the latter speaks, they are eontrul!ing. '" * f,' There ean he llO doubt that it is competent fol' congl'ess to declare the rules of evidence which shall prevail in the courts of the United States, not affecting the rights of pl'operty;'and when congress has declared the l'lIles, the state law is I am not unmindful of the decision of Mr. Justice MILLER in the e-ase of J?lint v. Bd. Com'rs, 5 Dlll. C. C. 481. This case arose in the state of Kansas, and the decision is very brief. The question in that case was whether the notice and certificates were sufficieilt. That is not the question here. The learned judge in that 'case remarh "that the act of 1872 is broad enough to sanction the practice, where the local regulations do not conflict with any special provision of the act of congress." This decision was macle in the state of Kansas, and, in order to understand the import of the same, the laws of Kansas .should be seen, in order to ascertain whether the point in question here could or did arise in the case referred to. By reference to the laws of 1-(;1nsas, (sec Revision of 1859, § 135, p. 353,) this section prOVIdes that "any court of record of tbis territory, or any judge thereof, is authorized to gl'anG a commission to take depositions within or without the territory. The commission must be issued to a person or persons to be named therein." So far, then, as the qnestion now to be determined is concernecl, it is sufficient to say that the laws of Kansas, like the laws of congress, provide that a commission to take depositions must be allowed by the court or a judge thereof; and the very point made here is that the dedimlls mnst be applied for to the court before it could lawfully issue, and that the same must name the person ,,;ho is the commissioner authorized to execute it, neither of which was done in the case now under consideration. It thus appears that the laws of Kansas are in exact accord with the laws of congress, and the . decision of Justice .MILLER in no manner conflicts with the views I entertain upon this subject. I have extended this opinion beyond what I otherwise should have done had it not been stated that different judges helli different views upon this subject. This deTJosition is suppressed.
See Sonr;!iby v. Keelfv, 11 FED. REP. 578, mHl note, 530.
llATES V. DAYS.
(OiI'wit Court, lV. D. M1S8ouri.
UNITED STATES OJ:ITY.
Under the provision of section 915 of the Revised Statutes of the United States a circuit court administers the law of the state in which such court is held attachments; and when property has been attached in a suit in the United 8tates court by the marshal, and the sheri:!! has levied an attachment issued from a state court on the goods in the hands of the marshal, the pnority of the lieu of the attaclling creditors is to be determinea by the state law. When writs issue from state and feJeraJ courts against the same property, the officer first obtaining posses,ion, on being notified that a state court ollicer has a writ acrainst the same property, should be ofIered all reasonable facilit;cs to make a full return, and tho officer holding the property should show in his return whatever was done by such state otlieer. Federal courts and stale courts are not foreign courts, or in hostility to each other, in administering justice he tween litigants. The citizen of the state in the feder!!l court cannot be deprived of },ny right he has in a fedeml cou;·t, and the citizen of another statc has the same claim to a deutor's property in the state where he resides as a reSident, but no murc.
OF .l\LmSIIAI,-ATTACIBIEN'r STATE COUIlTS.
FEDERAL Couwrs AND 8TATE CounTS NOT FonEIGN COURTS, OR IN HOSTILITY.
At Law. Dysart J: Foster, for Rubey. Williams and,Mr. Carlile, for Hemphill and Bailey.
'l'he facts in the case are as follows:
Dates, a citizen of New York, sucd Days, a citizen of }\Iacon City, :Macon connty, in the state of .l\Iissouri, by attachment on a claim amonnting to $3,800, and the United titates marslial, on the twentieth day of illarch, 1882, under a writ, seizeu a stock of goods, books, notes, and accounts, valueu at 812,000, as the property of Days. On the day of the seizure, one Rubey, a citizen of the state of as assignee of the illacon City Savings B1luk, sued ont an at tachment in the state court against Days on a claim of the bank for :33,500, and the sherilI of :.\i:acon county, to whom tlie writ was directed, undertook to levy the attachment on tlie property seized by and in the actnal possession of the United States marshal. In his return the sheriff states that he levied the ?ttachlllent, on the stock of gOOlls of Days, snbject to the attachment of Bates In the United tilates court, and that he notified the marshal of the attachment and levy, and that he summoneu him as garnishee. Some days after the levy by tbe sberiff, Hempbill and Bailey, two non-resiuents of the state of :lIIissouri, sueu ont an attachment each against Da,s in this court, and the United States marshal levied tbe sallJe on the goods' which he had seizer! on the attachment of Bates. The property attached was sold under an order of this court, and about .'3"3,000 realized. The first attachment of Bates, amounting, with CO.3ts, to about 84,000, has Leen paid. There remains in the registry of tl.e court tlic balance of proceells, which is claimed uy Rubey under his attachment, and by Hemphill and Bailey ou their attachments. These auverse chilli'; are the matter iu cOlltrovers)'.
The difficulty grows out of the constrnction of the act of congress regarding attachments, and the application of its proi'isions to the state laws on the same sulijed. The hms of Mi"souri mul;e prvvis-