aPplied tp et/:Ltedin tl;te biU·.. t};le does not ariseundeJ;' any act of the plaintiff must resort to ".',., ' the state court for his, re.tnedy.. . The. ql.\ei3tion bJl.s :man. d.Mjged; the qther way by the court of appeals of this state, in (lfark, 100 N. Y. 365, 3 N. E. Rep. 335j Hat Sweat ManuJ'g 00. v. Reinoehl, 102 N. Y. 167, 6 N. E. Rep. 264, where it was held that in such a case the plaintiff can and must resort to theoircuit'court of the United States. It will probably afford the plaintiff poor comfort to know that, while in this conflict of alkUH)pity lpft :r;eH},lfRry for the violation of his rights, the question has received careful consideration at the hands of both the tribunalfi of last re!,!ort. @d state, and was decided in each by a divided
(Ckcutt Qourl; 1i1. D.Wt8C,onsin.
Where, on the granting of a petition for the removal of a cause from a state court to the federal court, the defendant failed, through the iuadvertence of his counsel, to have .the. r.eco.rd .p ...,rOAl.P.1 transmitted to the circuit court, (Act 1875, § 8,) and W transmission, 'Whereupon the plaintiff, for thepurpbse of a motion to remand, transmitted such record, held, that plaintiff's motion should be granted for want of due prosecution under ,,.[ tl!(l . ,
64ME-MO,'l'ION TO '
REMOVAL OF OAUSES-TRANSMISSAJ, 'OF RECORD:.....LACHES.
ofplalntiff, for Hi mouths, in mil-king his motion to remand, 1teld not a waiver 0f tb6 right tlGobject to defendant's }aiJlure to file, in the " '. :circuit court. a QOpy of t)l6 tlJ,e Cituae
On MQtionto Remand. <fc $(J(irchild, for the ]jJJlis, (fteert6 & Mmi,U, contra. .
J. This suit was begun the court in 1885. On the thud da.y of OctQPe,r in that year the, defendants filed a petition and the requisite bond the removal of the cause to this court, alleging that the plaintiff was an alien, and that the defendants were citizens of this state. Although 15 months h;1ve elapsed since the'petition for removal was tiled, during which time fOl,lrterms of this court have been held, the defendants have never caus.e.d to be entered here of the record in the suit, as required by their bond, and by section 3, of the removal act of 1875. At the present term the plaintiff has brought to the court, and produced for filing, 9, cqpy of the record, and has moved that the ,case btl remanded to the court. The ground chiElfly urged. in supportof the motion is the plaintiff is not an alien,but acitizen of the United States and of the state of Wisconsin; but, upon suggestion
M'GREGOB ". K'GILLIB.
made that the defendants had been guilty of lllches in not entercourt a copy (If the record in the suit, the court required extp be malie of. the Cil-uaes of the defendants'. failur(l to comply the law filing reGord. One of the counsel for the defendants has filed an affidavit in which he on filing the petition and bond for removal, he directed the clerk of the state court to immediately transmit a certified copy of the repqrd to this court, and th,at t4e clerk promised to comply with such such promise, supposed that illstruction; that the deponent, relying the reGord hlld been duly tranl!mitted to the clerk of court, and did not know tl1at it had not been transmitted and filed until the second day ap.d it is alleged that the .has never of the present mOVed to r!'lman,q. tl1e caSI'l Ul)til tl1e present motion was made, nor has he taken flHY ac#,on to briIlg the case to trial sincll the removal thereof. It is also that the plaintiff has not been prejudiced by the delay in filing tp.e rAAPrd. because other suits involving the property in controversy in thill suit have been pending in variojls courts since 1885, the trial of one or more of which was desired in advance of the trial of this case, and the qefendants now consent that the case be placed upon the calendar without notice of trial, and be tried at the present term. On the pa.rt pf the plaintiff. an affid.avit made by the clerk of the state court is subII}ittted, in Which the deponent states that, at the time of the filing oithe petition and bond for removal, defendants' attorney told him that he would inform him (deponent) when he wl?uld have the record transmitted; that the attorney did not request or qirect him to make any transcript of the record, or offer him any fees therefor, or inquire what sW;:p fees would be, but only requested him to file the petition and bond, and said he would let deponent .know when he wished the record transmitted; tpat the deponent was never subsequenijy informed that defendants desired the record transmitted, and he denies that he was at any time directed or requested to send thr record to this qourt or that he pronlised to do so. ' One of tp.El attorneys for the plaintiff makes a verified statement, in 1886, he inquired of the clerk of this court which he says that in whether he had received a copy of the record, and was told that he had not, and that it had not lJeen filed; that this inquiry was made with a view to making a motion to remand, in case the record had been entered. It also appears that in November, 1886, the deponent asked one of the defendants' attonleys if the rllcord had yet been pled, and was informed that such attorney. knew nothing of the case, and would speak to his partner, who had charge of the case, about it, and that the defendants have not to the present time caused a copy of the record in the suit to be entered in this court. A counter-affidavit has been filed by the attorney for the defendants who has charge of the case on their pan, in which he denies that he said to the clerk of the state court that he would inform him when he would have the record in the case transmitted to this court; and states further, among other things, that he was neverinformed py his partner, wit4 whom the plaintiff's attorpey swears he had ing ip.
1886, t11atthe record had 'not Upon' tliisstate of facts, ith,eqtie:,tion is raised .whetliM' the l!ourt should to proceed here as if the record been duly by the parties making the renioval, or should ra'mand it to state court.., ' , ',' ';I>ifferences of opinion at bhe tosome extent, prevailed in the $ubordinate' federal cpurts as to whether the requirement of the act of 1$76, that It coPy of the record in the suit removed, shall be filed in the circuit court on the firllt day bf the next session thereof following the filing ,of the petition forremovaI, is mandatory, and involves jurisdiction, 'or is direct<)ry merely, and involves only a matter of procedure. In Wool'ridge v. McKenna, 8 Fed. Rep. 650, the statute, in the particular mentioned, waS held to be directory, and as, by inlldvertence, which was shown to be quite excusable, the transcript of the record from the state court was filed on the second instead of the first day ofthe term of the 'federalcourt next succeeding the filing of the petition and bond for ra"illoval, the" court, in view of the exceedingly brief delay in filing, the 'ttlmscript, was of the opinion that the objection to the retention of the case on that ground was not maintainable. But it is observed in the opinion that" while the statute may be held to be directory, merely, and not mandatory, '* * * it does, not follow that it is nugatory in that regard, or that the courts can ignore its plain requirement that the transcript shall be promptly filed on the first day of the term." In Stoute»burgh v. Wharlon,18 Fed; Rep. 1, it was held that the provision of the 'act of 1875 in'relation to en'teripga copy of tho record in the suit on the first day of the session of the federal cOUlt after filing a petition and bond for removal is mandatory; andlhe opinion of Judge BLATCHFoRD in Me!&an v. St. Paul &: O. Ry. 00., 16 Blatchf. 309, indicates the same view. But it is now idle to d.iscuss that qtt.estion, as it is settled by the decision of the supreme court 10 St. Paul & O. Ry. 00. v. McLean, 108 U. S. 212, 2 Sup. Ct. Rep. 498. In that case it was held that the failure to file a copy of the record on or before the first day of the succeeding session of the federal court does not depriye that court of jurisdiction to proceed in ,the action, and that whether it should do so or not upon the filing of such copy, is for it to determine. " ,The case at bar should not,therefore, be remanded to the state court on the ground that, because of the failure of the removing parties to duly enter a copy of the record i.n the suit, this court is without jurisdictiOll. But the question is :whether the court, in the exercise of its discretion, ought to proc,eed in the case,as'if the copy had been filed within the time prescribed by the statute, or should send it back to the state court for want of due prosecution under the removal. Railroad Co. ·v. Koontz, 104 U. S. 5. , ' In Kidder v. Featteau, 2, Fed. Rep. 616, it was held that if thete is such unnecessary delay in filing the transcript as amounts to upexcused laches, whereby the 'other party is prejudiced, the federal'court may for this reason remand the, case. There was a delay of 43 days, and the court was of opinion, as the partymoving to remand had not been prlju.
M'GREGOR tI. M'GILLIS.
diced by the delay, the case ought not to' be remanded. In HaU v. Brooks, ' 14 Fed. Rep. 113, it appe.ared that a copy of the record should have been filed November 1st. It was ,not filed until December, and the excuse, for the delay, which was that, from infonnation sought and at the clerkls office, the attorney' understood that the next succeeding ,term would be in' December, was held sufficient. In Stoutenburgh V,, Wharton, 8'lJpra. there was a delay in filing the record from the March term until the Septembertenn. The excuse made was that the removing party had seasonably given verbal directions to the clerk of the state court to transmit to the federal court a copy of the record, and suphis request had been complied with. This was held to he aninsufficient excuse, and the ease waS remanded. Thus different judges have taken different views of the question as it has arisen before them. In MeLf,a'P- v. St. Pam Ry. 00., 16 Blatchf. 309, the first day o( the of the federal court after the case was ,ordered removed by the state court, was April 7 ,1879. The removing party filed a. copy of the recor<,l onth,e,tenth <lay of April, and Judge BLATCHFORD remanded the case because of the delay. " This judgment was affirmed on wntof 108 U. S. 212,2 Sup. Ct. Rep.tU8., 'Mr. .', ' ,' Justice HARLAN, speakin.g for the,coUl't, said:' "We perceive no ground to question the correctness of the order of May 28. 1879, or to conclude that there was any abuse by the court of its discretion. The only reason given for the failure to file the transcript Within proper time was inadvertence upon the part of counsel; in other words, the flling was overlooked. It is scarcely necessary to say that this did not constitute a sufficient legM for. not complying with statute."
... '. ' . . · · J. ,
This language of the court seems to be directly applicahle to the present case. We have .here an issue of fact between the attorney for the defendants and the clerk of the state court as to what occurred between them ih relation to transmitting a copy of the record to this court. 'But, ' the statement made by counsel, the case was orie,nat to state it more strongly, of inadvertence, so far as he was concerned. 'rh,efiling was oyedooked. Stoutenburgh v. Wharton, 8UpTa, is directly in point. It the duty of the to see. that the record was filed.. A party in such circumstances has not the legal right to rely upon a request made to and a promise by an officer, and, on his failure to transmit the then plead the request and the officer's default asa valid extmse . for' not having had the record entered as the law reqUires. ..' And, as said in ttreoutset, the defendants have not, even to this day, after the lapse of 15m9nths, caused a copy of the record to be filed.. _The re«ord is now brought to this court by the plaintiff, and filed by hili) as it basis fail:u;reto file the for his<motionto remand. To pass the. record ,after this long lapse of time, unnoticed, would tend· to establish a in' the removal of causes from the stateicolirts that might prove mischievous in practice. A more strict compliance with the stat· .. ute is essential, -and must be required. 'But: it is argued that the plaintiff has waived his right to ohjectto the to file a copy of the record by delaying his' motion to
· . (I.
yemand' until thE! present time.r cannot adopt that conclusion·. It wouldcettainly be singular if the. defendants could escape. the effect, of th,eir own laches by alleging ihatthe plaintiff ought so.onerto have complained of laches. . If tlfedefendailts had caused, a 6bpy of the record to be filed, even thoi:tgli'sodlewhat outof time, aiid then the plaintiff had unseasonably oelaye\:l fnakirig amotion to remand,. the question of waiverw'otild, present a dift'er.ent a'Spect. The facts in Miller v. Kent, 18 Fed. Rep. 561, cited in counsel'S! brief, are not given in the report of the case, btitlhllve no doubt the facts were that the removing party filed a record, andthe'n .that. there was unreasonable delay by tblj opposiw party in moving to remand. Certainly the party removing a caS6 o'ugnt not to De'permitted to charge tbeopposite party with lacheS while he is hidiself still in default. As is wen stated in one of the briefs subtnitted, it is npdn the theory of submission to the juristo renUlnd is a waiver diction o'fth'UedetaI bonn thittlll delay iIi onhe tight. And, in Ii legiilsense, there can be no submission to the jurisdiction 'until the court is in «'position tb proceed V1fith the case, and it is not.iti such position untirtlHHecbrd is filed. ." .In cdn'cllISion, hie order Of the coilrt will be that'the Cause be remanded for want of due proS'eciltWir tinder the removab
CiH of· WORcESTJht
(OIretttt Oourt. D; Ma8Bao!l,u6ett8. March 16, .1881.)
1. RRMOVAL OF Pll' A CIvIL ;N"ATURE"-DlV:l!lR8ION OS' WATER FRoM MILIr-ASMSSYENT lOll' DAMAGES,.
A pr'ocee'ding ina. under St. MlIss. 18$1, c. 268, for the appointment o'fcomJilissi'oners. and the assessment of damages suffeTed by complainants, inill-pwners,i,n RhQ&e I,sland, by reallRn.otthe diversion of the water of astreaIIJ, in by: the defendant,Is removable to the federal court on the ground of citizenship of the parties. Such a proceeding is.1l. "sult of a civil nature either at law or in equity, "within the statutes as to removal of causes.
2. BAME-SPECIALSTATUTORY PRocE,EDmG-REYAND.
8: &ME-PETITION-AMoUNT.. from .a state court to the federal court, jUrisdioWhere a cause is removed
tion sufficiently appears in the'record if tlie amount in dispute is stated in the petition for removal, although it be not stated in the original petition in the cause.
Where cause.has been removed from a state court to the circuit court on the ground of citizenship, it will not be remanded because founded upon a special statutory procedure authorized by a statute of th'e state, if the Circuit has equal power, with the state court to follow,the Procedure prescribed by the state law. Midland Ry. 00. v. J"imiiB, 29 Fed. Rep. 198, approved.
Where a removal of a cause involving the ownership of land Is sought on the ground Of diverse citizenship of the parties, in determining the question of thecour,t is to 10\lk at the CItizenship of the real owners, and not to that of Ii party who is a trustee only. .