BOBLE. t1. MASSACHUSETTS BEN. ASS'N.

837

NOBLE 11. MASSACHUSETTS BEN. ASS'N.

COwcuit Court. N. D. New YO!1£. November 20,1891.)

1.

REMOVAL OP CAUSES-PETITION AND BOND-WImEE TO BB F):LED.

The petition and bond for the removal of a cause must be filed in the clerk's office of tbe 9Ounty.in which the venue is laid, and, if filed in another county where the . court is then sitting, it does not effect a removal, though approved by the presidin,;r
, jUdge;.

BAMB-Al'PROVAL B:r :STATE COURT.

2.

In view of, the fact that section 8 of the removal act the state court to accept a sufficient petition and bond when filed, and that sectiqn 7 empowers the court to which the cause is removable to issue a writ of ce'rt£orari the state court to return the record to it, a removal may be effeoted by simply filing the petition and bond, without presentingit to a judge of the state court, or in open .<l9um'tor approval., ' " ' '

John $., PdU,nd, for plaintiff. J. K. ll.ayw(jrd, for defeqdant.

At

L8:w.,on moti9n to remandtoJhe state colU'f;.
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J. This is a motion by the. plaintiff to,remand this action to the from which it The suit was brought in the :supremeCO\lrt of the staW. of. New York, Niagara county beingspecified in the coroplaintas the place oetriaI. Before the expiration of the to plead Qr.answer to the complaint, the defendant presented a petition, aC(joml,pan,i>E!d by a bond· p:roperly conditioned and with good and sufficient the supreme court then in session in the county of Erie, and the Justice presiding indorsed his acceptance upon the petition and, bond. Thereupon the defendant filed the petition and bond. with the clerk of the county of Erie. It is conceded by the plll.intiff that the petition and bond were properly presented at the term of .the court in session in Erie county; but the plaintiff insists that they should have been filed with the clerk .0£ the county of Niagara; and the motion proceeds solely upon the ground that, because thtlY have not been filed with .the clerk of the county of Niagara. the action has not been properly removed. 'fhe clerks of the several counties of this state are clerks of the supreme ·court within their respective counties; and the clerk ofthe county of Niagara is the custodian of 'the records in all suits in the supreme court the venUe of which is laid in that. county. Section 3 of .the act of March 3, 1875, as amended ,:t>ythe act of March 3, 1887, provides that "whenever any party entitled to remove any suit * * * may desire to remove such suit from the state court to the circuit court of the United States, he may make and file a petition in such suit in such state court, * * * and shall make and file therewith a bond, with good and sufficient surety," and "it shall then be the duty of said state court to accept said petition and bond, and proceed no further in such suit." The statute requires the bond tp be conditio.ned for the entering by the removing party in such circuit. court, on the first day of its the.n next session, of a Copy of the. ,record in such suit. Section 7 provides that if the derk of v,48F.no.5-22

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FEDERAL.REPORTER,

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the state court in which any such cause shall be pending shall refuse to any party, apply.irig to ,remove 'the lmm:e, a copy (jf:the record therein, he shall be deemed guilty of a misdemeanor; and also provides that the circuit court to whicb:the suitshall'beremovable snall'nave power to issue a writ of certiorqri,tosaid commanding said state court to, make return ofthereeord in any such cause; It is manifest from that the petltiouand bond whidbal'e to be .filed in the suit the state'court are to he filed with the clerk of 'that court, custody of the records in the suit, and rcan"supply a copY' orthe'record pll-rty;or to the circuit c<;nir;t, upon return to fl. 'W1:1t of certiorari. , '., " " . 11;;,slalso!l<PPliirent that,>unless and, bond are, filed by the removing party in the office of the clerk of the countyorthe'venue, nei. ther the opposite party nor the have any formal or adequate notice of, thetemoval '6f line;snit, . .,·Of ·conseque\.lt,inability to proceed further in the state court. The. statute does not require any notice of the proceeding to be given by th'e rtihJ.oving party to'the adverse, party, except by filing of petition bond; and, my judgment, receht opinions 'contrary' by juages entitled to weigbt, '.it dOOs' nllt'! rtJ<! uire the removwhoae' ing party.ropresentbiapeti<tion lor bond to' a I jt1dgl;l; either in vacation 01'1 in open oourt,but is!satisfied when hei·files theni with the official euatodian'oftherecords !df the'doul't; The: statute:reguireshirrr totnake l\ petitionluid;ibond"iliLthe' suit"in th'estatecourt. " It does not,1 tin 'tetmB, him to l11ake',any oihefi' presentlltion of them to tbEFeou·rt;and if he tlieoon$ideration :court, or ofiajudge, his lU'tfnot enlat'ged abridged'brthe action Of the <lotl"l't or'judge. The statute requires the statE; Cburt to "accept" the petitioH aM bond,lin<1" prCXleednl> :further in the suit. " As is pointed 'out b1J,nstice' FrELDil1 34 Fed. Rep. 561, no ·6rderof the'siate court accepting thenlis contemplated,to transfer juris. diction 'oftb'a action. 'As'he says: . '''The de'tIialby the state court of a petition in norElspect' affects the diction afitbe cirduit·courll'ot the United. States, if the, action is removable, 1\uch,;asthe The stlj.tu,te makes the re.and the. lqQ val UpQ11 the tllin. goftUe;,petition.with the necessary bond." . !fa bond, and enoneously ;decides' ittb ·he insufficient-; the 'removal is nevertheless,' and its jurisdilltiffll' ceases. :RemoiXtl Ca8eti;lOO U. S: 4172,' The state courUs prohibited ,from; pl'6ceedingfurther in the 'suit unless'thepetitioh and 'to' entitle ,the'application to·' a consequently it is at libe'rty ·'to'deCide that· the petiti()n' does not aremovable':OOl1se l 'or ia'insuffioient upon its face, or that, the bond is insufficiet1t. 1, ; 'If it deCides correctly, it does not lose jurisdiction, a.nd can 'proceedi"butiits errGtieous decision cann1?)t impair .thejurisdictidnof the ctreuitooU'rtl 1,(Jreh0t6<v. Railroad 00., ,1:31 U. S') 243, 9 Sup;· Ct. Rep. ,692.' Certaii'll,! iHs thedecorou8: prActice. for 'the removing' party to 'present his petition and 'bond to the judge of court. llndobtain

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NOBLE fl, M,ASSACHUSETTSBEN. 4SS'N.

the formal acceptance of the court. It is also the safer practice, because he can thereby have aQ opportunity to obviate any remediable objections which are suggested to their sufficiency in case the court refuses to accept them. ;But this :is ..nqt indispensable, and when they are brought to the attention of the court in the manner prescribed by the statute, by filing them in the suit, the court can proceed no further, if they are sufficient. When filed, they become a part of the record in the cause, and the court is judicially.informed that itll power over the cause has been suspended. InslwanceCo. v. Pechner, 95 U. S. 185. Judge DRUMMOND decided in Osgood v·. Railroad Co., 6 Biss. 340, that the bond and petition DEled not be filed in term-time. "Thpy are to be filed in the suit in the state courtj that is, with the clerk in the ordinary way in which papers are marked and filed in a suit." This, as it seems to me, i$ the correct view of the statute, and it is to be regretted that it has been departed frorn recently in some of the circuit courts. If a petition ('.an 01.1y be presented in open court in many alSea, the right to a removal wUlbe lost, because it sometimes happens that there is no court in session during the 20.days within which, by the practice in this staw, a defendant must plead or answer to the complaint. The defendant in the present case acted upon the theory that he was obliged to find an open session of the state court, and present his petition and bond to the judgepJesiding for approval and acceptance. There was no court· in session in Niagara county,and none in the judicial district, except in Erie county. Having presented his papers to and obtained the approval of the judge presiding, he very natul811y handed them to the clerk of the court who was present. This slip in practice, however, cannot be cured, ,becauae the papers .were not filed with the clerk of the proper court before, or even since, the expiration of the time to plead or answer to the complaint. Being filed only in the. clerk's office of Erie county, the petition:. and bond did not become a part of the record in a suit pending in Niagara ,JQunty, and 8ueh a filing did not convey notice to the adverse party or to the state court that the power to proceed further in thestllte court was gone. The motion is granted.

1140
Los

I'EDERALREPOR'l'ER,

vol. 48.

'D. HOFF

ANGELES FARMING

& MILLING CO.

et aI.

(Cf,rcuit Oourt, S. D. Oalifornia. December 7,1691.)

1.

REMOVAL OF CAUSES-FEDERAL QUESTION-PETITION.

A petItion for removal, which merely avers that the determination of the controversy involves the construction Of the homestead laws of the United States and the validity of a patent from the United States, but fails to allege any facts from whlch the couri may see that such questions do actually arise, is insufficient.
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ll.

". J:n an ejectment Butt remoV.ed to a federal court the pleadings showed that plaintiffs had been in possession 1under' a patent :issued in con:fl.rination of' a Mexican grllut,for maUyyears before defendants Defendants denied that the lands were subject to grant, and also doij.ied the validity of the confirmation of the grant and of the' patent issued thereon" and they claimed the land wall Subject to home. stead entries. aeld, tl:1at theee, pleadings raiee no federal. q)1oeti,on,to .enable the court to retain jurisdiction; for'deferidants, being strangers to the paramount title; , oannot question the validity of plaintiff's patent. . .

SAME-'EJEOTMENT-]\bxICAN

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whethl,lr the land, SUed Included in . ',' the'g'l'$it, aB'defined tfy the patent, presents no federal 'questiorl, as'lt merely in;,v<!lves lqoation of boundary; lines. . ,.;"

. (;)n motiQnto remand. Action by.. Farming:& MilUng Company against Hoff and others.. Stephcfl" M. White and Grave8, 0'lI1elv.eMJJ &: Shankland, for plaintiff. H. Bleecker and John D. Pope; for deJendants..
Ross; J. This action was:commenced on the 24ih of October last in the superior court of Los Angeles county. It is an action Of the 'complaint being duly verified. In it, it is, among other things, alleged ,that the plaintiff is, and has been for many years continuously last in fee and in the possession of the tract of land upon .which the, alleged to have entered OD !the 8th day of 00tober, 1891, and from which they are aUegecito havlvthen ousted the plaintiff, consisting of a part, embracing many.thousands of acres, of tM Rancho San Fernando, for which rancho it is alleged Ithegovernment of the United States, on the 8th of January, 1873, duly issued and delivered to one Eulogio F. De Celis a patent, in confirmation of a Mexican grant therefor to him made June 17, 1846, by Pio Pico, then governor of the department of the Californias, and whose title to the portion of the rancho here in controversy it is alleged vested, through various mesne conveyances, in the plaintiff long prior to the defendant's entry upon the premises. It is alleged that the patent so issued has never been set aside or modified in any respect, and that it is still in full force and effect; that for 20 years last past plaintiff' and its predecessor in interest have been continuously and uninterruptedly engaged in farming and pasturing the portion of said rancho so. owned and possessed by them, and have produced annually large crops of grain thereon, and have erected and maintained at great expense numerous farming stations thereon, and have reduced large areas of said land to a high state of cultivation. It is upon land so patented and possessed that defendants
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