Clark v. Child

Morton, C. J. The U. S. St. of March 3,1875, § 3, provides that, in order to remove a suit from a state court into a circuit court of the United States, the party seeking such removal “ may make and file a petition in such suit in such state court before or at the term at which said cause could be first tried, and before the trial thereof.” — 347 — In New York Warehouse & Security Co. v. Loomis, 122 Mass. 431, which was in its facts much like the case at bar, Chief Justice Gray said that “the manifest purpose and effect of this enactment are that a party, who intends to remove a case from a state court into a federal court for trial, shall do so, not only before trial in the state court, but at the first term at which a case is at issue for trial and might be ordered to be tried there.” In the absence of any adjudication of the Supreme Court of the United States opposed to it, this interpretation is decisive of the case at bar. The suit was entered in the Superior Court at April term, 1882; the defendant filed his answer at that term; the action was then at issue; and the court had the power to order it to be advanced for trial at that term, under the Pub. Sts. o. 167, § 48, and independently of the statute. In other words, the cause was ready for trial, and could be tried, at the April term. A majority of the court is therefore of opinion that the Superior Court rightly ruled that the defendant’s petition to remove the suit, filed at a later term and before trial, was not in season, Gurnee v. Brunswick, 1 Hughes, 270, 277. We must therefore consider the other questions presented by the report. The suit is brought upon a judgment of the Superior Court for the city and county of San Francisco in the State of California. The judgment is, that the plaintiff recover the sum of $19,994.85, with interest thereon at the rate of seven per cent per annum from the date thereof till paid, together with said plaintiff’s costs and disbursements incurred in this action, amounting to the sum of $259.50. It appeared at the trial, that the defendant appealed from this judgment to the Supreme Court of California, and that said appeal is now pending. It also appeared that the defendant had not filed any written undertaking, with sureties, as required by the statute of California, approved March 24, 1874, which provides that, “if the appeal be from a judgment or order directing the payment of money, it does not stay the execution of the judgment or order, unless a written undertaking be executed on the part of the appellant, by two or more sureties, to the effect that they are bound in double the amount named in the judgment or order; that if the judgment or order appealed from, or any part thereof, be affirmed, or — 348 — the appeal be dismissed, the appellant will pay the amount directed to be paid by the judgment or order, or the part of such amount as to which the judgment or order is affirmed, if affirmed only in part, and all damages and costs which may be awarded against the appellant upon the appeal.” The purpose and effect of this statute are, that an appeal does not vacate the judgment or stay execution. The judgment against the defendant remains in full force in California, and the plaintiff is entitled to maintain an action upon it in this State. This question is directly decided in Faber v. Hovey, 117 Mass. 107. The remaining question is as to the rate of interest which the plaintiff is entitled to recover. In suits upon judgments, interest is recoverable, not as a sum due by contract of the parties, but as damages, and follows the rule in force in the jurisdiction where the suit is brought. It has therefore been held, that, in such suits upon judgments of sister States, the plaintiff recovers interest according to our laws, and not according to the laws of the State in which the judgment is rendered. Barringer v. King, 5 Gray, 9. Hopkins v. Shepard, 129 Mass. 600. If, by the general laws of California, it was provided that, upon all judgments of its courts, interest should run at the rate of seven per cent, this provision would not operate in another State in a suit upon a judgment. The fact that the provision is embodied in the record of the judgment cannot give it greater force. It is not an essential part of the judgment, which other States are bound to respect and enforce, but affects the remedy upon it, which is governed by the lex fori. One State cannot thus control the remedy and determine the rule of damages which shall govern sister States in which a remedy is sought upon such judgment. We are therefore of opinion, that in this case the plaintiff is entitled to recover interest upon the judgment, both for damages and costs, according to the laws of this State, at the rate of six per cent. There can be no doubt that he is entitled to interest up to the time of making up the judgment in this case. Pub. Sts. c. 171, § 8. Judgment for the plaintiff accordingly.