s. K. MARTIN 'LUMBJllR CO.
that the revisers, in the ninth elause of, ection 629, did not ins tend to disturb the jurisdiction then vested in the United States circuit <lourt,conferred by the two sections of the act last alluded to. By ref·erence to the act ofJuly 8,1870, it will be seen that section 106 provides J'that all actions, suits, controversies, and cases arising under the copyright laws of the United States shall be originally cognizable, as well in ·equity as at law, whether civil or penal in their nature, by the circuit ·<lourts of the United States, or any district court having tht:jurisdiction of a cirouit court." Prior to that enactment congress had expressly authorized certain other penalties imposed by the copyri!!:ht laws to be sued .for in the circuit as well as in the district courts of the United ·States. Vide 14 St. at Large, 395, § 1, act Eeb. 18, 1867. In view of section 106 of the act of July 8, 1870, we think. it clear that congress intended thereby to give the United States circuit courts jurisdiction of suits brought to recover penalties imposed by the copyright laws of the United States, and that it retains such jurisdiction since the revision of ·the laws of the United States, by virtue of clause 90f section 629, supra. The reference made in section 106 of the act of July 8, 1870, to suits of thatqwi tam actions a penal as well as of a civilllature, makes it .arising under the copyright .laws were within the contemplation of congress when that section was enacted, and that jurisdiction of such suits was intended to be conferred on.the circuit court. The plea to the jurisdiction ill accordingly overruled.
'v. S. K.
(OircuitOourt. W·.D. Micltigan, S. D. February 19,1889.)
!lEMOVAL OF CAUBES-PRACTICE-Tnm TO PLlllAD.
Under the statute requiring that after the filing of the petition and bond for removal the petitioner 8hall file a copy of the record in the circuit court on thetir8t dllyof the next term, and that the cause 8hall then proceed in the same !panner a8 if it had been originally commenced in. said circuit court, while the court's' jurisdiction becomes vested when the petition and bond are filed" the time for pleading does not begin to run till the record is entered.
$mitf!., Nims, Hoyt & ,Erwin, <;ontra.
SEVlJJn:NS, J. The plaintiffs commenced this action in the circuit court ·for eO,u.»ty of Musl«-gon by an attachment, for the purpose of recovering an alleged indebtedness due to them from the defendant. . The defendar.i, ali. the time its appearance was due in that court, filed therein its petition for removal into the circuit court of the United States, setting it was. a corporation orgaIli.zed under law-eaf Illinois, having that ,the. were .all its principal place; of .QUfliness at Chicago,
UM :&. orane, for the motion,
Motion to set aside Q,efault and other proceedillga. ,
citizens of the state of Michigan; and filed the requisite bond for ehtering , the record in this court on the first day of the next term. The petition and bond were filed in the state court on the 3d day of January last. On the 29th day of the same month, upon the petition of the plaintiffs, and suggestion that the removal of the cause by the defendant was for the purpose of delay merely, and that there was reason to apprehend that the defendants would not file the here within the proper time, this court entered an order giving the plaintiffs leave to file the copy of the record. The order went no further than that, and did not determine the consequences of filing the record here before the first day oithe next term. On the 31st day ofJanuary the plai'ntiffs, pursuant to the leave so grahted, filed the transcript in this court. On the 1st day of February they gave notice of the order and of the filing of the transcript to the defendant in Chicago, and on the next day entered the default of the defendant for want of an appearance, and also for want of a plea. This the det'endant now moves to set aside. The entry of the default must have been done, and could only be sustained, upon the theory that the time for pleading continued to run on uninterruptedly upon the removal into this court by the filing of the proper petition and bond in the state court, instead of being suspended. The defendant, on the other hand, insists in its reasons for this motion. and upon the hearing it was argued, that the jurisdiction of this court did not fully attach upon the filing of the petition and bond, and will not be finally vested until the first day of the next term, at the time designated for filing the transcript; and it is said, in substance, that the case is dormant, and the court without power during the interval to move in it, except upon some emergency to preserve the 8tatlL quo. Finally, it is urged that the time for pleading is suspended during this period of dormancy, and revives onlynpon the arrival of the day when the record must be brought and filed here. I do not agree to the proposition that there is an intermediate state in which a case is resting after the filing ,of the petition and bond in the state court, and before the day when the record must be filed in the federal court, and in which the jurisdiction of the latter cOJlrt is inchoate, and can only be exercised piecemeal, as necessity requires. On the contrary, it appears to me that the correct. view of the matter is to regard the jurisdiction over the case as being absolutely and completely acquired by the federal court upon the instant when the state court loses it, and that is upon the proper filing of the petition and bond in the latter court. And it seems to me that the concession that the court may exercise its authority over the case upon its own views of the necessity for it is tantamount to an admission that its jurisdiction is fuUy vested. But in the exercise of its jurisdiction the ,federal court is bound to follow the course of practice prescribed by law. If it fails to do this in dealing with the case, its authority is erroneously exercised. It is not, therefore, a question of jurisdiction: but of regu}al'ityonly. This appears to me to be the view of the subject taken by the supreme court in Railroad Co. v. Koontz, 104 U. S. 5, where it is said. in the opinion delivered by Chief Justice WAITE, at page 15:
TORREN.T'".B. K.MARTIN LUMBER
"We are aware that in the Remo'Oal Oases. [100 U. S. and Kern v; Huidekoper, 103 U. S. 485, it is said, in substance, that after the petition for removal and the entering of the record the jurisdiction of the circuit court is complete; but this evidently refers to the right of the circuit ('ourt to proceed with the cause. The entering of the record is necessary for that, but not for the transfer of jurisdiction." And at page 17: ..As we have already seen, the jurisdiction WllS changed from onf' court to the other wIlen the case for removal was actually made in the state court. The entering of the record in the circuit court after that was mere procedure, and in its nature not unlike the pleadings which follow the service of process, the filing of which is ordinarily regulated by statute or rules of practice. The failure to tile pleadings in time does not deprive the court of the jurisdiction it got through the service of process." And in Stearn-Ship OJ. v. Tugman, 106 U. S.118, 1 Sup. Ct. Rep. 58, it is said at page 122: .. Upon the filing, therefore, of the petition and bond, the suit beingremovable under the statute, the jurisdiction of the state court absolutely ceased, and that of the circuit court of the United 8tates immpdiatelv attached. The jurisdiction of the latter court attached in advance of the tiling of the transcript from the moment it became the duty of the state court to accept the bond and procl'ed no further; and whether the circuit court of the United States should retai11 jurisdiction, or dismiss or remand the action because of the failure to file the necessary transcript. was for it, not the state court. to determine... The next question is, what is the course of procedure prescribed by law in such cases? In regard to this it appears to me to be necessarily implied in the provision that the petitioner shall file the copy in the circuit court of the United States on the first day of the next term, and that cause shall "then proceed in the same manner as if it had been originally commenced in saidcircuit court;" that the time which will elapse before that date is not to be counted in measuring the periods allowed for the steps in pleading. For, while it is absolutely settled that the federal court may direct or permit the record to be entered before the first day of the next term, still it is evident that in the general course it was contemplated by the statute that the .record would not be entered until thilt time. That being the clear intent of the law, it must be taken as implied that the time for taking forward steps in the pleadings in the was intended to be suspended until the time fixed when the record must be entered; otherwise we should have the anomaly of a course of pleading going forward here before the return of the record. To pursue the analogy suggested by the Chief Justice in Railroad Co. v. Koontz, 8Upra, it would be like accelerating the pleadings and the joining of the issue before the return-day of the process, which has been duly served. There would be the like irregularity and error in the one case as in the other. The result is that the default was prematurely entered, and must be set aside. The other parts of the motion are denied, namely, that "all proceedings of the plaintiff in this court in this cause be set aside for want of jurisdiction," "and for a stay of all proceedings in this cause in
this court until the first· day of the next session of this court;" the former because, whether grounded upon good reason or not,such proceedings. are harmless to the defendant; an9- the second, because, in the present situation, and in the view which pas been taken of the principal question, no such order is required or would he appropriate.
PLATT ". PH<ENIX AssUR. CO. OF LONDON.
(Oircuit Oourt, D. Vermo.nt.
March 14, 1889.)
lbKOVAL·OP CAU8Es-J'OBISDICTIONAL AMOUNT.
. A declaration containing a special count on an insurance polley for $2,250. alleging a total loss, and to plaintiff's damage $2,000. "for the reo coveryof which, with just costs, pTaintlff brings suit," and common money countslnaS8UmpBit fOr $2,000, concluding as in the first count, shows that the amount in dispute exceeds $2,000, and the action is removable under the act of March 8, 1887
At Law. On motion to remand. Action by Frederick a.Platt, assignee, against the Phrenix Assurance Company of London. ' ' . George E. Lawrence, for plaintiff. . F. G. Swinington, for defendant.
WHEELER,J. This suit was begun in the state court, and removed to this court. The plaintiff has moved to remand upon the ground that the amount in does not exceed the sum of $2,000, required by the act of 1887. The declaration contains a special count upon a. policy of insurance of $2,250 on specific' property, alleging a total loss, and concluding to the rlamage of the plaintiff 82,000, "for the recovery of which, with just costs, the plaintiff brings suit;" also the common money counts in a88Umpsitfor $2,000, concluding to the damageof the plaintiff 82,000, "for the recovery of which with just costs the plaintiff brings suit." These allegations of damages and claims of recovery, together, amount to $i,OOO, which, so far as appears, is the amount in dispute which may be recovered in the suit. Barry v. EdmundJJ, 116 U. S. 550, 6 Sup. Ct. Rep. 501; Hiltun v. Diclcinson, 108 U. S. 165, 2 Sup. Ct. Rep. 424. The motion must therefore be overruled.
ABRAH.uA:: Q,. BORTH GERMU' J'IRZIBS.
NORTH GERMAN FIRE
«(Jz"rcuu Court; No lJ. Iowa, E. lJ.:March 18,1889.>
Wher-it is: held that an action at law cannot be maintained on anil1surance policy ,.nless it is reformed, and the action is continued to enable plaintiff. tQ procure such reformation. a bill filed for that purpose is auxiliary to the action at law, and a subprena to defendant in the equity suit is properly served on its attorneys in the law action.
2. SAME-BILL JOOR REFORMATION IN Am OF LAW ACTION. Though plaintiff might have filed his bill for reformation in the first instance, he was not bound to do so. but had the option to adopt the course pursued. . ,
In Equity.' On motion to set aside service of subprena. Bill by G. G. Abraham against the North German Fire Insurance Company. Charles A. Clark and F. A. Hormel, ·for complainant. Hende:rsm, Hurd, Daniels Kiesel, for defendant.
SHIRAS, J. The complainant in this proceeding brought an action at law in a state court against. the defendant oompany; averring that he was the owner of a certain elevator building in the town of New Hall, Iowa, and that he had been carryinp; on business therein in the name of one Eyler, who was in fact his agent; that the defendant company coutracted to insure complainant from loss by fire, on said property; that as evidence of such COll.tract a policy of insurance was issued in the name of said Eyler; that during the life-time of said policy the property was destroyed by fire; and that the company, after due notice and proofs of loss had been furnished, refused to pay the sum due upon the contract of insurance. The defendant removed the case into the federal court, and upon demurrer it was held that upon the face of the policy of insurance, which was attached to the petition, it appeared that the contract of inslirance was with Eyler, insuring his personal interest in the prop. erty, and not that which he represented as agent of complainantj that complainant could not therefore recover in the law action, so long as the polioy of insurance remained as it then appeared on its face; and that, if the facts were as claimed by complainant, the remedy consisted in procuring a reformation of the written policy, conforming it to the truth of the matter. Thereupon the court, on the application of the complainant, continued the action at law, in order to permit the complainant to £le a bill in equity for the purpose of reforming the policy, and by conit to the facts as they were claimed to be, to enable complainant to· rely thereon as evidence supporting the action at law. The bill being filed for the purpose named,a subprena was duly issued for service upon the defendant company, and W9,S retumedby the marshal, having been served upon the attorneys appearing On behalf of the company in the law action. The company, entering a special appearance, movea to set aside such serviGe as insufficient. It is shown that the defendant'com-