ERWIN V. WALBR.
BHELDRIOK t1. COOKOROFT. SRELDRIOK
and Wife v. S.U.IE.
(tMcuit Oourt, D. Oonneoticut. May 24.1886.)
REMOVAL OF CAUSES-BaND-COSTS.
Where the bond filed by the removing party does not provide "for paying the costs that ma]' be awarded by the circuit court," as required by the act of March 3, 1875, 3, the case is not properly removed, and must be remanded.
Motions to Remand. John H. Light, for the motions. Fredk. A. Hubbard, against the motions. SHIPMAN, J. These are motions to remand to the state court. The two cases were removed under the provisions of the second and third sections of the act of March 3, 1875. Section 3 requires that the removing party shall make and file in the state court, with his peti. tion, a bond, with surety, fOt entering, on the specified day, a copy of the record in the circuit court, "and for paying all costs that may be awarded by the circuit court if the said court shall hold that such suit was wrongfully or improperly removed thereto." Neither of the bonds in these cases contained any provision in regard to costs, but were in accordance with the requirements of section 639 of the Re· vised Statutes. "The filing of the bond, conditioned as required by the act of 1875, is a condition precedent to the removal of the cause to the federal courts." If the statutory requirements were not complied with, the cases were not properly removed, this court has no further jurisdiction, and the motions to remand must be granted. Torrey v. Grant Locomotive Work8, 14 Blatchf. 269; McLean v. St. Paul If O. R. 00.,17 Blatchf. 363; Babbitt v. Olark, 103 U. S. 606. The motions are granted, with costs in one only of the cases.
(Cirouit Oourt, D. Oonneotiout. May 81,1886.)
REMOVAL OF CAUSE-ORIGINAL JURISDICTION.
A suit in a state court, which falls within the description of suits removable into the circuit courts, may be removed, although it could not originally have been brought in that court.
Although the value in money of a right to appeal from the probate of the decedent's will cannot be appraised with exactness, yet as the right of the plaintiff in the estate, if it is intestate, is far more than $500, and as the value
of that depends directly upon the power to bring the question of the validity of the will before a court, the :pecuniary value of the matter in dispute is sufficient to bring this case withm the jurisdiction of this court.
Motion to Remand.
Frank L. Hunge·rford, for motion. George G. Sill, against motion.
SHIPMAN, J. This is a motion to remand to the state court. The suit· in the state court was a proceeding by mandamus to compel the defendant, a citizen of Connecticut, who is judge of the probate court for the district of Berlin, to allow the plaintiff's appeal to the superior court for the county of Hartford, from a decree of the said probate court approving the last will of C. B. Erwin, deceased. The petition and bond were filed in time, and are in proper form. The plaintiff, a citizen of Nebraska, removed the cause. l'he defendant moves to remand becauseFirst. Circuit court& of the United States cannot, under the removal acts, take jurisdiction of appeals to the state courts from probate decrees approving or refusing to admit to probate the wills of deceased persons. This question, which is a difficult one, and which has not been determined by the supreme court, (Fraser v. Jennison, 106 U. S. 191; S. C. 1 Sup. Ct. Rep. 171,) it is not now necessary to decide, for it does not arise in this case. The proceeding is for a mandamus to compel the allowance of an appeal to the superior court,-non constat, that the appeal, if allowed, will ever be attempted to be removed to this court; and the question whether the plaintiff is entitled, under the statutes of the state, to an appeal to the state court is a very different one from that of the validity of a will upon such appeal. Second. . Because the circuit courts, by way of original, as distinguished from an ancillary, proceeding, "are not authorized to isBUe writs of mandamus unless they are necessary to the exercise of their respective jurisdictions." B,dh v. Amy, 13 Wall. 244. This has frequently been said to be true by virtue of the fourteenth. section of the judiciary act of 1789, (1 St. at Large, 81, 82,) with respect to the jurisdiction of this court in cases originally brought to it; but this court often has jurisdiction in a removed case which it could not exercise in cases originally brought before it. The court obtains jurisdiction of a case because, under the statutes, it can be and has been removed, and not because it is a case of which the court had original jurisdiction. "A suit in a state court, which falls within the description of suits removable into this court, may be removed, although it could not originally have been brought in this court." Warner v. Penns.1Jlvania R. Co., 13 BIatchf. 231; Barney v. Globe Bank, 5 Blatchf. 107; Sayles v. Northwestern Ins. Co., 2 Curtis, 212. Thus, Mr. Justice MILLER held that a proceeding by m.andamus in the state court, under the statutes of Kansas, to compel the defendant to register the transfers of stock held by the plaintiff, was