Darton v. Sperry

Tokrahce, J. The first question to be considered in this case relates to the rulings of the court below with reference to the petition to remove the suit into the Circuit Court of the United States. The parties to the suit are all residents of this State, and the sole claimed ground for removal is that the second defense raised a controversy about the" construction of the United States Bankrupt Act, so-called. The defendant demurred to the petition on two grounds: (1) because “ only the defendant has the right to remove a cause, and the plaintiff has not,” in a case like this; (2) because “the statute of the United States governing the removal of causes, does not permit the removal of a cause .for the reason assigned in the plaintiffs’ petition.” The court below, upon both of these grounds, held that the suit was one which could not be removed. We are of opinion that the court below did not err in so holding. Under the Act of Congress of March 3d, 1887, as corrected by the Act of August 13th, 1888, which governs in the present case, the plaintiff, in a case like the one at bar, is not entitled to remove the cause. That.Act, by declaring that the removal may be made “by the defendant or defendants therein,” has excluded the plaintiff from the exercise of such a right or privilege, even though every other element of removability is in the case. Black’s Dillon on Removal of Causes, § 65. [344] Moreover, it is well settled that a cause is not removable merely because a federal question is raised, as here, by the answer or plea or other pleading, subsequent to the complaint, bill or declaration. To make a suit removable on this ground alone, it must appear at the outset of the suit, in the bill or complaint or other initial pleading of the plaintiff, that it is one of that character, and no statement to that effect in the subsequent pleadings in the suit, or in the petition for removal, can supply the want of an allegation of' a federal question in the initial pleading of the plaintiff. Tennessee v. Union & Planters Bank, 152 U. S. 454; Chappell v. Waterworth, 155 id. 102; Oregon, etc., Ry. Co. v. Skottowe, 162 id. 490; Walker v. Collins, 167 id. 57; Black’s Dillon on Removal of Causes, § 112. In the present case no federal question is alleged or raised in the complaint, and it thus comes within that class of cases where the right to remove, merely because a federal question is or may be involved, does not exist. On both grounds, then, the court below rightfully held that the cause could not be removed, and this being so, the court of course had authority to proceed further with the suit. After the filing of a proper petition and bond in a proceeding for removal, the State court is without authority to proceed further in the suit, only when the case is one which can rightfully be removed,—one of which the Circuit Court of the United States can take jurisdiction. In such a case, after the filing of the petition and bond the State court is without authority to proceed further. Marshall v. Holmes, 141 U. S. 589; Winchell v. Coney, 54 Conn. 24, 32. But the filing of a petition and bond in a suit not removable does not work a transfer from the State court. To accomplish this the petition and bond must be filed in a suit that may be removed, and the petitioner must show a right in himself to remove it. A State court is not bound to surrender its jurisdiction on a petition for removal, unless a case is made by the record which entitles a party to a removal. Crehore v. Ohio & M. Ry. Co., 131 U. S. 240; Winchell v. Coney, supra. We think the defendant had the right to withdraw her [345] motion to strike out the petition for removal, and that the court did not err in proceeding to render judgment notwithstanding the notice for a hearing upon the application for a writ of certiorari. This disposes of all the assignments of error save the first, which is that the court erred in overruling the demurrer to the second defense. The judgment of which the plaintiffs complain is a judgment of nonsuit. It is based, not upon the ruling of the court upon the demurrer to the second defense, nor upon any of the other rulings in the case, but upon the considered and deliberate act of the plaintiffs in abandoning the case and failing to appear. It was not the result of the ruling upon the demurrer in question, and was not in any way affected or caused by that ruling. Under these circumstances the question whether the court did or did not err in its ruling, is not properly before us upon this appeal; and if it were, and the ruling was wrong, it did the plaintiffs no harm. For these reasons it is unnecessary to consider this assignment further, or to pass upon the question which it presents. There is no error.. In this opinion the other judges concurred.