OSBon II. OBBOBll.
88.
any eosts that might arise because otthe wrongful removal, is not such a bond as the statute requires. We are of opinion that the jurisdiction of this court in a case removed from So state court does not depend upon the form, nor even upon the substance, of the bond which is presented 'to and approved by the state court before removaL lUhe statute in other respects is complied with, and So copy of the record is filed here in accordance with the statute, the removalis complete. But, upon looking into this record, we observe what counsel seem to have overlooked-the petition for the removal of the cause into this court is in the present tense. It states that the de. fendants are residents of another state. Under the judiciary act of 1789 the supreme court has held that the record must show the citizenship of the parties at the time of the commencement of the action. In a case recently decided in St. Louis, where Justice Miller was present in court, it was held that the same rule prevails under the act of 1875, and that the petition for removal under that act must also show the eitizenship of the parties at the time of the commencement of the action, and not at the time of the application for re· moval. On that ground, therefore, this case must be remanded. Although the motion does not present that question, the court is bound as to that jurisdictional matter, and to take notice 01 it without any formal motion. NOTlll.
Bee Ourtin v. Decketr, .upra.
OSBORN f1. OSBORN
and others. December, 1880.)
(a,""it oourt, D. Minnuota.
L
REMoVAL-LoOAL PREJUDICE ACT-FINAL HEARma IN STATE CoURT.
The submission of a case to a jury does not constitute a" tinal hear. ing," within the meaning of the "local prejudice act," when there has been a partial disagreement &II to the verdict. S. CHANCERY CASE-VERDICT 011' JURy-MINNESOTA STATUTE.
Under the peculiar provisions of the statute of Minnesota, the submission of the facts of a chancery case to a jury render the verdict a necessary part of the tinal trial of the causo.-IED.
Motion to Remand.
Go",«fon E,Cole, fOl\plaintiff. O. M. Start and Taylor <t Sperry, for defendants. C. J. This is a motion to remand. The case is equitable in its character, and was commenced in the state court under the practice authorized by the laws of Minnesota. Certain issues of fact, some five in number, I believe, were submitted to a jury. was heard, the case submitted, and the jury failed to agree. They agreed upon two of the questions submitted to them, but failed to agree as to three. The cause is removed under what is known as the "Local Prejudice Act," which provides that, upon making an affidavit that by or on account of local prejudice the parties are unable to get justice in the state tribunal, the case may be removed at any time before the final hearing or trial. The only question in this case is as to whether there was a final hearing. The cause went so far as for the court to receive the evidence and to submit to the jury the questions of fact which had been framed for their consideration, but as to the most material of these questions the jury failed to agree. There was in effect no verdict. It is as if there had been an entire failure to find any verdict, because a partial verdict in such a case is no verdict at all. If a trial by jury under the statutes of Minnesota, in a case of this character, is a part of the trial of the case, there has been no final trial within the meaning of the statute. Of course, it is well known that under the old practice a jury in a chancery case was only called for the purpose of aiding the conscienoe of the chancellor by settling certain facts in dispute. But, under the peculiar provisions .of the statute of Minnesota, we are of opinion that where the court determines, either upon its own motion or by consent of parties to submit the facts in a chancery oase to a jury, then the verdict of the jury becomes a necessary part of the final trial of the 'imd', as there' was no verdict, we hold there wasnofirialtriaf of the case, and therefore the motion to reniand is overruled. MCCRARY,
PARROTT V.. ALABAYA GOLD LIFE INS. 00,
891
1:'ARROT'f' t" L
ALABAMA GOLD
LIFE INs. DE-
. (Oireuit Oourt, N. D. TC:lJaB. December 15, 1880.) P.EMOVAL-EXCEPTIOl{ TO PROCESS-J'JJlUSDlCTION OF PERSON 011' FENDANT.
The application of a defendant for the removal of' a cause from a state tOll. federal court, does not constitute a waiver of the use and of proper process of summon$ or citation in the cause, where the first action of the defendant, in both the state and federal courts, was to except t'o the process by which it was attempted to give thoSe courts jurisdiction of his person. 2. BERVIOE 011' PROCESS-NoN-RESIDENT CORPORATION-PERSONAL JUD(Ioi
Acertitled copy of a petition and a writ called a" citation," directed "to any person residing in: !Iobile county, Alabama, competent to make oath of the fact of service hereof," was attempted to be served; in accordance with a statute of the state of Texas, (Sess. Acts p. 170,) on a defendant corporation, by delivering the same to the president of such corporation at Mobile county, Alabama, by a person who made oath that he made such delivery. Held, that such service would not authorize such personal judgment against the nonresident corporation as could ,be enforced by execution against any property of the defendant found within the state of Texas.-[ED. Pennoycr v. Neff, 95 U. 8. 714.
,
Motion to Quash Service of Process. D. J. Two questions occur on the consideration of this motion: (1) Has the defendant been served with process such as can compel an answer td plaintiff's suit, or permit the court to proceed with the cuse were no answer, or appearance made by the defendant? (2) Has the defendant, by obtaining a removal of this cause from the state court and having the transcript entered here, made an appearance, either in that court or in this, in said cause, as dispenses with the requirements for bringing in parties by service of process? The last question will be considered first, as, if it is deterthe other question becomes immamined in the terial. The statute in reference to removal of causes under which this case is brought here explicitly declares that after reaching' this court the case shall proceed as if originally brought in this court. The proceedIngs for removal appear MCCORMICK,