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36 F. 609

Shedd v. Fuller

United States Circuit Court for the Northern District of Illinois

Decided November 5, 1888.)

United States Circuit Court for the Northern District of Illinois · decided 1888-11-05

On Motion to Remand. ■ Action by Charles B. Shedd against J. Ensign Fuller and others, commenced in the state court, and removed by defendants to the circuit court of the United States, by filing a petition and bond with the clerk of the state court. Motion by plaintiff to remand.

2 counsel of record

Key passage — most relied on by later courts

““The right of removal is purely statutory, and the jurisdiction of the state court •remains undisturbed until a proper petition and bond are presented to that court for its judicial action. It is not sufficient to present the petition and bond to the clerk, who is the court’s mere ministerial officer. While it is dear that the right of removal does not depend upon the action or nonaction of the state court, it is equally clear that the state court cannot be deprived of its right to decide for itself upon the sufficiency of the petition- and bond. The presentation of a proper petition and bond to the state court for its action -is a jurisdictional prerequisite.””

quoted by 1 later decision, including Bahls v. Welfare Loan Soc. of La Fayette

““The petition should be presented to the state court, and opportunity given that court to act. In this case the petition was presented to the clerk of the state court, and filed by him, and a certified copy immediately made and given the defendant. The court never had its attention called to the petition. This is not the proper practice indicated by the statute granting removals from the state court, or recognized by the United States supreme court.””

quoted by 1 later decision, including Williams v. Massachusetts Ben. Ass'n

Relies on Stone v. State of South Carolina

Good law ✅— No negative treatment on recordhow we know

Decided 1888-11-05

How this case has been cited

Cited by 7 later decisions — most recently February 1927

1 federal appellate ·

4018881890190019101920decided

Later decisions citing this case, by decade. The current decade is in progress, and our corpus holds fewer opinions from the most recent years, so the latest bars are undercounted — not a real decline.

View the full empirical analysis of this case →

¶1Removal of Causes — Procedure — Filing Petition and Bond with Clerk.

¶2Under the act oí congress for the removal of causes, (March 3, 1887,) providing that a party desiring to remove a suit from a state court to a circuit court of the United States shall file his petition and bond in the state court, a filing of the petition and bond with the clerk of the state court is not sufficient, as the court itself has a right to pass upon them, and the cause will be remanded.

¶3On Motion to Remand. ■

¶4Action by Charles B. Shedd against J. Ensign Fuller and others, commenced in the state court, and removed by defendants to the circuit court of the United States, by filing a petition and bond with the clerk of the state court. Motion by plaintiff to remand.

¶5Capt. Prescott, for plaintiff.

¶6G. Briggs, for defendant.

¶7Gresham, J.,

¶8(orally.') The counsel for one of the defendants in this suit presented to the clerk of the state court, in which the suit was pending, a petition and bond in the usual form, for its removal to this court, and upon the request of the counsel he was furnished by the clerk with an authenticated copy of the record, which was filed in this court. It is admitted that the petition and bond were not presented to the state court for its action. The removal act of March 3, 1887, as well as the prior acts upon the same subject, provides that a party desiring to remove a suit from a state court to a circuit court of the United States shall file his petition and bond in such suit in the state court, when it shall bo the duty of that court, if the petition and bond be sufficient to satisfy the statute, to accept both, and proceed no further in the case. The right of removal is purely statutory, and the jurisdiction of the state court remains undisturbed until a proper petition and bond are presented to that court for its judicial action. It is not sufficient to present the petition and bond to the clerk, who is the court’s mere ministerial officer. While it is clear that the right of removal does not depend upon the action or non-action of the state court, it is equally clear that the state court cannot be deprived of its right to decide for itself upon the sufficiency of the petition and bond. The presentation of a proper petition and bond to the state court for its action is a jurisdictional prerequisite. Stone v. South Carolina, 117 U. S. 430, 6 Sup. Ct. Rep. 799. Motion to remand sustained.

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