,Olrcuit Court, D. Nebraska. May, 1880,)
REMOVAL OF CAUSE-DELAY IN FILING only necessary consequence of failure to file the record of a case removed from a state court, under the act of March 3, 1875, by the first day of the next term after the application fOl' removal, or within 20 days after such application, is to create a liability on the bond. UnnecIJssary delay, amounting to laches, in filing such record, prejudicing the other party, may be ground for remanding the case; but the party is not entitled for such cause, as mattei' of right, to have it remanded. Delay in filing record in this cause held not sufficient ground for remanding cause to state court.
Brown d: Campbell, for plaintiff. C. A. Baldwin, for defendant. MCCRARY, C. J. This is a motion to remand the case-to the state court, from whence it was removed, on the ground that the transcript was not filed in this court by the first day of the next session after the application for the removal, nor within 20 days from the time of such application. The third section of the act of March 3,1875, (18 St. 470,) provides that the party filing a petition in a state court for the removal of It cause to the circuit court of the United States, "shall make and file therewith a bond, with good and sufficient surety, for his or their entering in such circuit court, on the first day of the then next session, a copy of the record in such suit, and for paying all costs that may be awarded in said circuit court, if said court shall hold that such suit was wrongfully or improperly removed thereto," etc. The seventh section of the same act provides "that, in all causes removable under this act, if the term of the circuit court to which the same is removable, then next to be holden, shall commence within 20 days after the filing of the petition and bond in the state court for its removal, then he, or they, who apply to remove the same, shall have 20 days from such application to file said copy of record in said circuit court, and enter appearance therein; and, if done within said 20 days, such filing and appearance shall be taken to satisfy the said bond in the behalf."
KIDDER V. FEATTEAU.
It is admitted that the copy of the record. in this case was
not filed within the time specified in these provisions of the statute, and in the bond executed in pursuance thereof. It seems, however, to be well settled that the only necessary consequence of this delay is a liability of the obligors' on ,the bond. If there is such unnecessary delay in filing the transcript as amounts to unexcused laches, whereby the other party is prejudiced, the federal court may, for this reason, the case. The defendant, in this case, cannot demand, as. a matter of right, that the case be remanded. It is for the court to say whether, under all the circumstances, there has been inexcusable laches. Dillon on Removal of Causes, 74, note 125. In this case it appear that the petition for removal and the filed in the state court on the eighteenth day of bond December, 1879, and that the transcript was filed here on the thirty-first of January, 1880. The intervening time was, therefore, 43 days. It does not appear, however, that the defendant has been prejudiced by the delay. The 'suit is brought to enforce the collection of certain promissory notes of the defendant, and to foreclose a mortgage given by him to secure the same. In the absence of any showing to the contrary, I must presume that the defendant in such a case is not damaged by a post-ponement of the day of trial, and while a long neglect to bring the record into this court, if unexplained, would not be excused, I do not see in the facts of this case any sufficient' reason to remand the cause, and this motion is accordingly overruled.
JAMES and others.
(OWiJUit OfllVl't, No D. Illinoi,.
FEDERAL COURT-JURISDICTION-STATE STATUTE DIRECTING THAT ACTION SHALL BE IN STATE COURT.-The fact that a state statute may provide that all actions of a particular character arising within its limits shall be brought in a certain state court, will not affect the jurisdiction of federal courts in sueh actions, otherwise competent. BAME-SAME-8AME.-A state statute provided that guardians might be licensed to mortgage the estate of their wards, but that foreclosure of SUGh mortgages should only be made by petition to certain state courts. Held, that mortgagee was not thereby precluded from bringing action for the foreclosure of such mortgage in the federal courts, the citizenship of parties and amount involved.being sufficient to confer jurisdiction.
This is a bill to foreclose two trust deeds, and the case haH been heard upon a plea to the jurisdiction of the court. It appears from the bill and pleas that on application to the county court of this county by the defendant James, as guardian of the minor heirs of Robert D. McFarlane, deceased, he was duly authorized by that court to borrow the sum of $50,000, in all, for the purpose of erecting buildings on the premises in question; and, to secure such loans, was further authorized to execute mortgages or trust deeds upon the premises; and pursuant to such order the guardian borrowed $40,000 from complainant in 1873, and $10,000 in 1874. And in his capacity as guardian the defendant James executed to complainant his promissory notes for the sums so borrowed, together with trust deeds on the real estate, to secure the payment of such notes. The pleas allege that these trust deeds were executed solely under the authority of the state statnte, and the order of the county eourt acting in pursuance of such statute, and that the complainant, when he made the loans, had knowledge of such fact, and of the provision of the statute under which a guardian of minors may be empowered to execute trust deeds or mortgages. The point raised by the pleas is that these trust ,deeds can only be foreclosed in the county court which, authorized this execution. The statute provides that ,the
DYER, D. J.