#### ALICE CHAMBERLAIN, Appellant, *v.*THE AMERICAN NATIONAL LIFE AND TRUST COMPANY, Respondent.

*Removal of cause to United States courts*— act *of Man'ch*8, 1875 — *notice of application.*

*Where the*court at Special Term, upon a petition setting' forth all the jurisdictional facts, after approving as sufficient the "bond required by the statute, makes an order directing the cause to he removed, the removal is, *eo instamti,*complete, and cannot he reviewed or vacated on the ground of improvidence or inadvertence. The only remedy of the party aggrieved is by application to the United States Court to remand the cause.

*S&rnble,*that under the act of congress of March 8, 1875, providing for the removal of causes from the State Court to the United States Circuit Court,_ notice of the application for an order directing the removal should he given to the plaintiff, though not required by the terms of the act. (Per Brady and Daniels, JJ.)

*371Appeal from order denying motion to vacate an *ex paHe*order, removing a cause to the Circuit Court of the United States.

*Field dk*Deyo, for tbe appellant.

*Lewis dfc*Beecher, for the respondent.

Davis, P. J.:

Upon petition of tbe defendant in due form, setting forth all tbe requirements of tbe act of congress approved March 3,1875, entitled “An act to determine tbe jurisdiction of tbe Circuit Court of tbe United States, and to regulate tbe removal of causes from tbe State courts and for other purposes,” and upon a bond, in tbe penal sum of $200, executed by one surety and duly acknowledged, tbe Special Term of this court, on tbe 14th of April,1877, made an order which recited tbe material portions of the petition, and that tbe petitioner bad offered good and sufficient security pursuant to tbe directions of, and as required by tbe said statute, and which order declared “ that it is made to appear to tbe satisfaction of this court that tbe present suit is commenced in this court, by a citizen of tbe State of Massachusetts against a citizen of tbe State of Connecticut, and that tbe matter in dispute exceeds $500, exclusive of costs. And it is hereby further declared and ordered, that this court accept tbe surety offered by this petitioner, and that tbe said cause be removed for trial, into tbe said Circuit Court of tbe United States, to be held in tbe southern district of tbe State of New York, pursuant to tbe said statute, and that tbe said petitioner file tbe process, pleading and proceedings in tbe said cause in tbe office of tbe clerk of said Circuit Court, within twenty days from tbe date of filing of this petition, pursuant to tbe said statute, and that this court do proceed no further in tbe cause, and that all proceedings in this court therein be, and tbe same are hereby, stayed.”

This order was made on tbe *ex parte*application of tbe respondent without notice to tbe appellant. Afterwards, and on tbe sixteenth of April, tbe justice bolding Special Term, made an order that tbe respondent show cause on the nineteenth of April, following, why tbe order granted on April fourteenth, removing tbe cause from the Circuit Court of tbe United States, should not be vacated *372and set aside, as having been improvidently and inadvertently granted. On the hearing of that motion it was denied by the court below on tbe ground tbat a motion in tbe Circuit Court to remand tbe case was tbe only way in which tbe order could be discharged. This appeal is brought from such order of denial. It will be seen, by tbe order above recited, tbat tbe petition set forth all tbe material facts required by tbe act of congress ; tbat it was verified by one of tbe directors of tbe defendant; tbat it was accompanied by a bond, and tbat tbe court distinctly passed upon tbe question of tbe sufficiency of tbe surety and accepted tbe same as good and sufficient. This is a ease, therefore, in which tbe jurisdictional facts authorizing tbe removal were presented to tbe court at Special Term, and tbat court, upon an *ex parte*bearing, found tbat such facts existed, and passed upon, and approved of, tbe sufficiency of tbe bond or security offered.

There is no provision in tbe act of congress requiring notice to tbe appellants, and tbe question of notice is not, therefore, a jurisdictional one. Tbe appeal in this case is not taken from tbe order above recited, but from another order of tbe Special Term,' denying tbe motion to vacate tbat order, on tbe ground that it was “ improvidently and inadvertently granted.”

It could not have been improvidently and inadvertently granted, if tbe case was one within tbe provisions of tbe act of congress, under which tbe petition was presented, and tbe jurisdictional facts were shown, and tbe requisite security given, because in such a case, tbe court below would have no right to exercise any discretion. I think tbe only questions which we have any power upon this appeal to consider are, whether tbe petition did set forth tbe jurisdictional facts required by tbe act of congress, and whether tbe security offered was such as to call for its approval by tbe court below. For, in our opinion, if tbe court below bad jurisdiction to make tbe order upon tbe facts presented and found, and upon tbe bond or security given, its order was completely effective to transfer jurisdiction to tbe Circuit Court of tbe United States, and divest this court of all jurisdiction of tbe case; and such jurisdiction cannot be regained by this court, even if tbe appellate court differ with tbe court below upon tbe providence or regularity of tbe order.

It was held otherwise under a former act of congress, in *Bristol*
      *373v. *Chapman,*(34 How. Pr., 140), but that decision is put upon the absence of notice of tbe application, and however correct it may have been, under the judiciary act of 1789, such notice is clearly not required by the act of 1875.

In *Cooke*v. *State National Bank of Boston*(1 Lansing, 495 ; affirmed, 52 N. Y., 96), it was held by the General Term in substance that the order of removal might be reviewed on appeal, if the necessary acts to effect the removal have not been taken. In the Court of Appeals, the case passed off upon a jurisdictional or rather a constitutional question, the court holding that congress had no power to prevent suits being brought against national banks in our State courts.

In *Taylor*v. *Shew*(54 N. Y., 75), in which the question arose under the provisions of the act of 1789, the defendent presented a petition correct in form and substance, and properly entered his appearance. He also presented a bond as required by the act. The judge refused to accept the bond, and the Court of Common Pleas retained jurisdiction, and proceeded to the trial of the action, and overruled the plea of the defendant, that the action had been removed to the Circuit Court of the United States. The Commission of Appeals held that the defendants had strictly complied with the statute, and that the Court of Common Pleas had no further jurisdiction to proceed in the case, and all that was subsequently done was *eoram non judiee,*and in substance, that the refusal of the judge to accept the bond tendered had no effect to prevent the removal of the case.

In *Stevens*v. *Phoenix Insurance Company*(41 N. Y., 149), it was held that the act of congress is mandatory upon the State court, and that when the defendant complies strictly with the act, the State court has no further jurisdiction to proceed in the case. *(Gordon*v. Longest, 16 Peters, 97, 104; *Kanouse*v. *Martin,*15 How., 198.)

If these cases be correct expositions of the law, it necessarily follows, that when the court at Special Term, makes its order upon a petition regular in form, setting forth all the jurisdictional facts, and upon the approval of the bond as sufficient, the removal is *eo vnsta/nú*complete, and cannot be overhauled on any ground of improvidence or inadvertence.

It was objected on the argument that the instrument called a *374bond in the papers, was not sealed; but that fact does not appear. It is described in the order and in the papers as *“*a bond,” and in the copy of the instrument given in the appeal papers it is stated, to have been signed, sealed and delivered, by the obligor.

In the order to show cause why the order should not be vacated, no such defect is pointed out. If it had been, and in point of fact, the bond was not sealed, it would have been clearly in the power of the court below to have allowed its execution to be completed. But we must assume upon all that appears before us that the instrument approved by the court below, was duly executed and delivered.

*We*are of opinion that the order should be affirmed, on the ground that the appellant’s remedy is by motion in the United. States Circuit Court, that the cause be remanded, as suggested by the court below.

The order should be affirmed, with ten dollars costs and disbursements.

Beady and Daniels, *JJ.:*

*We*think the plaintiff was regularly entitled to notice of the application although not in terms required by the act of congress; but as she was in no way injured, because notice was not given, concur for an affirmance of the order.

Order affirmed with ten dollars costs and disbursements.