3:T0:
is doubt in a case of removal as to the jurisdiction of this court, it is safer to remand, because there is no: doubt, about the jurisdiction of the state court. The motion" to rel11andis sustained.
Sunto and others v. SIMPSON and others.· (Circuit Oourt, D. Oolorado·. November 14, 1882.)
1.
SUIT BY NON-RI3lSIDENT-BOND FOR COSTS.
Under the statutes of Colorado, a suit brought by a non-resident Of the state . must, on motion by defendant in apt time, 'be dismissed, unless bond for costs was executed and filed at the time of the commencement of the suit. To execute the bond two days after the action is instituted will not avail. 2. SAME-REMOVAL TO FEDERAL COUctT.
Though no bond for costs is required in of suit originally brought in the United States court,yet when a cause is removed from the state court to the federal court, the Jatter begins,where the former left off; and motion to dismiss for want:of bond for costs :having been entered il). the state eO,urt, and pending aqhe time of removal, will be heard in the federal court, and determined in accordance with the law applicable to the motion when made.
On Motion. to, Dismiss. . . ct. Liddell, for plaintiffs. ' J. Waltlheimer, for defendanh. HALLET'f, D. This actio,n wli.sbrought in the distriot court of county, on the day oiMay last, to ,recover tpe sum of $4,500. Concurrentlywith the sumroons,plaiIitiffstook out a writ ofattac.hment, was levied on defendants' goods, and, together with the sumJ1?ons, was served on defendants on that day, It is conceded, that plaintiffs then were, and still are, citizens and residents of the state of New York, and that at the time of bringingthe suit no bond for costs was filed, as required by chapter 20 of the Revised Statutes of the state. Two days later, and ontJ;ie twentyninth day of the same month, such a bond was filed and apprQ.vedby" the clerk, and on hut whether before or after the filing oithe cost bond is not shown, ," defendants entered a motion to dismiss \ for wal}tof .ar bond. :Q,uth!3first of Jtlne following, the, dause was removed into this "courton'iplaintiffs' petition,lletting up the necesfh.1ryfacts asto<the citiz;anship of the pllrties; and :defendants, not haying otharwjs.6 appeared, now:urge their the court.' are .qtted, the. ;reports ofy:this: state andfromr .l!'rom the Colorado Law Reporter.
SUTRO '#. SIMPSON.
a7l.
the stll.te of;ll1inois, in which A similar statute was in force for BOrne ·time, to the that the statute is imperati:ve and must be observed. Tdlpey v. Doane,2,OCllo. 298;F1illllYV. Cad!y, a 0010.,221; Hickman v. Haines, 5 Gilman, 20. , The language of the act cannot be misinterpreted. After provid·ing in the.first section that security shall be given in a form which is pre13cribed, the first clause of the second section is as follows: "If any such action shall be commenced withoutflling such instrnment of writing, the court; on niotionlshall dismiss the same, and the attorney for the plaintiff shall pay all costs accruing thereon." The statute of Indiana, which was interpreted in Coz v. Hunt, 1 Blackf. 146, contained no such direction.. In the absence of such ,provision it may be. reasonable to say that the defendant should be satisfied with security given when it is demanded. With such a provision in the law, it must be apparent thatinothingshort of absolute denial of the authority of the 1egislature can prevaiLagainst. it. Nor is the bond for costs under a sta.tute of this kind an element of jurisdiction. By failing to object in apt time the defendant may waive .it,and the court will hava .authority. to proceed without it. People .v. Oloud, 50 m. 439. B.ut the power of the court to proceed in a case where no objection .is 1"aised. by defendant is not the matter in issue. That· question is, -whether, upon motion ma.de in due time by defendant, the statute shall be enforced;c,au.d upon that there is no room for debate. It is contended, however, that the motion to dismiss cannot be maintained in this court, inasmuoh as the act of congress of 1-875 declares that the actionshalls,tand in this court as if originally brought therein; and no bond for is required of non-residents or otber.s in suitabrought in this court. The language of section 8 of the act of 18,75 on that subject is as follows: "And the said copy being entered 'as aforesaid in said circuit court .of the United States, the eause shall then proceed in the same manner 80s if it had been originally oommenced in the said circuit.:court.'" It would be most extraordina.ry to regard this clause as depriving either party of any substantia.! right which could have been asserted in the. state court, if the eaU$e had remained ill that court. In a case of defective service of process, and after removal by,plaintiff, it will llaDdly be claimed that thedefendanl will be ·preoluded from objec.t-' ing the ,requirement that "the cause 'shall proceed/' ',Obviously the; intento£' the statute is:,to confer· on .the citeuit court, in rEl6pect to such case,;;, as full and ample authority aa·. is'lleld' in
/
372
cases brought that coart. But this is not saying that a question which properly arose in the state court before the, removal of the cause, and which remains undetermined, shall not be considered in the circuit court. The manner of bringing the suit, and its progress while it remained in the state court, was subject to the law of the state, which may be administered here as well as in the state court. And the circum. stance that the question could not have been raised in this court, if the suit had been brought here, is of no importance. The paragraph cited from,the act· of 1875 is jurisdictional to the coart, and not a limitation of the rights of parties. In the supreme court and in this court it has been held that in a cause removed from a state court to a federal court, the latter begins where the former leaves off. Dimcan v. Gegan, 101 U. S. 810; Brooks v. Farwell, 2 McCrary, 220; [So C. FED. REP. 166.] We take theclluse as we find·it. Whatever has been determined ·in the state court is accepted in the circuit court as conclusively settled, subject to the jurisdiction of the supreme court to .review it,on of error or appeal. Whatever remains undetermined at the time of the removal is to be decided in the circuit court according to our own modes of proceeding, but with full recognition of an substantial rights. The motion to dismiss was :tiled in the district court of the state in due time, and by the removal of the cause into this court the plaintiffs could not defeat either thel'ight to have the motion heard" or the effect of it when it should be heard. If defendants had made the application to remove, perhaps the aspect of the case would be ·different; not because of any obstacle to the motion in this conrt, but the application to remove as an appearance by defendants, and a step taken in the cause, might have been' regarded as a waiver of the objection respecting the cost· bond; But that view is not presented by Plaintl·ffs brought the case here voluntarily, and defendthe ants have not in any way changed theattituc1eassumed by them in the district court of the state·. The bond filed two days after the suit was broiIght, without leave of the court, was not in compliance with the statute. It will be observed that the language of the act refers to the commencement oi the suit as the time for filing the bond for c08ts;und it,is, in terms' declared that if the suit shall be commenced withotit filing the ,bond, it shall be dismissed. However hard the law may appear ,to be, the remedy is with the legislature, and notildhe courts. The suit will be dismissed at the cost of the plaintiffs.! attorneys.
NEW ORLEANS, M. &0. B. 00. V.OITY 011' NEW ORLEANS.
873
NEW OULEANS,
M. &
C.
R. CO.V.
CITY all' NEW ORLEANS.*
(Circuit Court, 1.
D. Louisiana. June, 1878.)
An.JUDTCATION-How DETERMINED. 1n determining what has heen adjudged courts will regard the der,ree, and in case of ambiguity, but not otherwise, be j/;overned by an accompanying opinion. An injunction having been by a state court and perpetuated by the <!cercc of the supreme court oj the state, a similar injunction granted as between the same parties, with regard to the same SUbject-matter, in a new suit, lJy a court of the same state and removed to this cOUlt, the matter'will be treated by this coud as a thing adjudged, and the injunction perpetuated.
2', b'.JUNCTION-RES AD.TUDIOATA.
In Equity.
,
D. J. This ,IS a cause which was commenced, in the' · "superior district conrt" of the parish of Orleans, and, has beeu' ,re-. moved from ,that court 'to this. In this court, from its nature, it stands as' a chancery suit. ' . ' .. ' Plaintiff alleges that.in the year 1874 the city authorities (thedefendan ts) sent a' large force to beat down the walls of a freight depot belonging to this defendant company. As an incident of the suit, the complainants obtaineJ an injunction in the "superior district court," pendente lite, and ,t4e object of this suit is to perpetuate that injunction. The mischief is of ,such a character as to make the case fall within that class of cases which justifies the interposition of the com'ts of chancery. ' The basis of the· suit as setup in,the petition of the complainant -now to be treated as a bilI equity-is a judgment of the supreme court of the state of Louisiana between the same pti.i·lies contained in the ,record-'-No;"3;692 of thatconrt. On the oWer hand, the dEjfendarits setup a frna '.Ieilree rendere'd in the supreme court' ofL'o'uisiana,' also the same pat:tipq, known as.N,o. 8,701 of of said court. An inspection of the record'in this case discloses the {act ,that th complainants bad , partly by purchase from private, owners and partly }:}y grant of th,eJeglslature, obtained two sets of rigllts,with to c,ertain of -in; the city of
John A. Crrmpbell ana. A. llficou, for complainants. , , 13. City Atty., and W. W. King, for defendant.
or
>,
otHepurLcd by-Joseph P. H(),rnor,
New.orleans bar. ,