The Cairo bulletin. [volume] (Cairo, Ill.) 1872-1878, 1875-09-19

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couit of the United States for the North 5
ern District Of Illinois. under the act of ]
congress OF tlie 81 of March. 1875. Bonds
were filed, conditioned as required {
by the act OF congress. 4 transcript Of t
the record of the suit in the State court. !
duly certified by the clerk OF the State 6
court. was filed In the circuit court of the I
United States. Oh the 2itl of March. A {
motion was then made In the Federal {
court to dismiss and remand the suit on I
the ground that the Federal court had no
jurisdiction.
In his first opinion delivered in this
case, Judge Drummond says, "thc Ian
guage of that section (section j of the
act ot 1870 is peculiarly significant as
affecting the motion now before the
court. The copy of the record has been
filed in this court, and the law seems to
indicate under what circumstances only,
In such an event, the case would he re-
mandcd back to the State court. 1t H.
when IL shall appear TO the satisfaction of
the Federal court that the suit does not |
really and substantially involve dispute |
or controversy properly within the ju- |
| risdiction of the court. or that the par
ties have been improperly or collusively
made, or joined, tor tn. purpose of Gre
a'ng case cognizable under the act.
1t Is true thnt the net rrescribcs the NAH
nor in which the removal shall be made,
and the directions Of the law should be
complied with. But the fifth section
does not authorize the court 10 remand
or dismiss the cause. for the reason that
it may appear that there was any irregu-
larity In the means taken to procure the
removal. The purpose obviously was, if
the record was filed in the Federal cour,
under the law. aud the court could see
that IL had jurisdiction of the case. it
should retain it. notwithstanding there
might br defects IN the MAJ ncr of re-
noval."
Afterwards. upon rc-argument before
Drnmmond and Blodget,, J. !. II second
opinion was delivered by Judge Drum
mOnd, in which he says: "rhe fifth Sec
ton contains provisions which are new.
1t IL true that in practice under previous
laws. when a case came into the Fed
cral court by removal from the State
court, motions could be made to dismiss
and remand the cause. but their decision
depended upon general principles. Now
the fifth section controls the action of
the Federal court both rs to the dismissal
and rcnanding of cases. II did not in
r tend the suit should be dismissed or re-
nanded on account of irregularities. pro.
vidcd 1t satisfactorily appeared that the
court had jurisdiction of the cause. Here
the only thing to which objection is now
made is as to the character OF the suit
and NE 'roas Of opportunity Of M0 State
There i no complaint made against the
sutficicncy of the bond. II may be ad-
: mitted there are difficulties In any view
l we may take of this part of the case''. =
Here, then, IN this case, there were
.'dcfccts IN the manner OF removal" and
'.irreauaritics, but as the records and
petitions filed showeda case where "it
was entirely competent for the defend
ants to remove it to the Federal courts"
aud Us the bonds filed were conditioned as
required by the act OF congress, and rs
the record from the State court was seer
tilted by the clerk under the seal of the
court" and was on file in the Federal
court; therefore, notwithstanding the
irregularities" and ''defects In the man
ner OF removal" and Notwithstanding
that the State court had not acted or had
opportunity to act upon the application
for removal, the Federal court, being
governed by the provisions OF the fifth
section of the act of 1875, ovcrruled the
motion to dismiss the suit. In other
words. the United States Circuit Court,
while admitting the "dcfects" and sir
reguiarities," refused to dismiss on that
account, holding that under the fifth Sec
ton it was only competent to dismiss for
the causes specified in said section.
The Federal court having thus decided,
and having decided that the petition and
bond were such us were required by the
act OF congress. had disposed of the
whole matter before it.
Is 1t the correct practice for the State
court, in applications for the removal OF
suits under the act Of 1873. to act upon
} the petitions and bonds? II strikes me
forcibly that it is.
; Such q practice is consonant with tho
practice prior to the act OF March 81, 1875
This act OF congress should be construed
In the light o, former legislative ant
, judicial determinations.
I The act itself provides in the third sec
, ton that any person "entH,c9 to rcmOv,
: any suit. = who shall
desire to remove such suit u
may make and file II petition in sucl
suit in such State court 81 81
., for the removal of such suit q
= q and shall make and file Herewith
:, bond. with good and suiilci mt surety
II shall then be the futy o
;, The State court 10 accept said petition an
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