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R.

474

Ramsey agt. Erie Railway Co...... 193
Reporter's Note.
Rogers agt. Long Island R. R. Co... 289
Rogers agt. Marshall..
Rondout & Oswego R. R. Co., agt.
Field..

43

W.
187 Witbeck agt. Holland..............

37

V.

Vanderheyden agt. Gary............. 367
Veazie Bank agt. Fenno....................... 147

...................

123

320

406

192

296

364

273

PRACTICE REPORTS.

SUPREME COURT.

WILLIAM G. FARGO as president of THE AMERICAN MERCHANTS' UNION EXPRESS COMPANY, appellant agt. James H. McVICKER, respondent.

Joint stock associations existent in this state, exercising such privileges as are given them by the statutes of this state, and suing or being sued, in the name of their president or secretary, as to all questions relating to parties to suits in or to be removed into the courts of the United States, are to be regarded as under the same rules as apply in such cases to corporations.

Where such joint stock association has brought action in a court of this state in the name of its president, and application is made by the defendant, a citizen of another state, to remove the same into the circuit court of the United States under the acts of congress of 1789 and March, 1867, such application cannot be defeated upon the ground that some of the stockholders of the joint stock association are citizens of the state of which the defendant is also a citizen.

The character of such joint stock associations, in corporate aspect, considered. Where a special term of the supreme court has granted an order removing a cause under the acts of congress referred to into the U. S. circuit court, &c., is such an order appealable to the general term? This question also considered.

Erie General Term.

MARVIN, BARKER and LAMONT, Justices.

APPEAL by the plaintiff from an order made at special term.

This action was originally brought in the supreme court of the state of New York, by William G.Fargo as president of The American Merchants' Union Express Company, against a citizen of the state of Illinois. The American Merchants' Union Express Company is a joint stock association; and the action was brought under the provisions of the act of 1849, by which, "any joint stock company or association may sue or be sued in the name of the presi

VOL. XXXVIII.

1

Fargo agt. McVicker.

dent or treasurer," &c. (Sess. Laws 1849, 389, 3 R. S. 5th ed.,777.)

The defendant applied to a special term of the supreme court for the removal of the action into the circuit court of the United States, under acts of Congress-the act of 1789, and the act of March, 1867.

The application to remove the cause was opposed upon an affidavit showing that certain stockholders in the company were citizens of other states than the state of New York. The special Term granted the application to remove. No measures to stay proceedings under the so-called order of the special term have been taken. No point is made as to the regularity of any of the proceedings, and the main question, therefore, to be considered is: can the defendant in such a case compel the removal of the cause into the U. S. circuit?

A preliminary question also arises as to the power of the general term of the supreme court to entertain appeal from the so-called order of the special term.

CLARENCE A. SEWARD and GEORGE B. HIBBARD, counsel for defendant.

First-No appeal can be heard at general term from this so-called order of the special term.

I. The removal of the cause into the circuit court is at least substantially, (and it is claimed in every legal effect, point second), by operation of law. The sole duty of the supreme court is stated by the acts of 1789 and 1867. The acts provide that the citizenship of the parties, and the amount of the "matter in dispute," are to be made to "appear to the satisfaction of the court, and that the sufficiency of the surety is to be determined by the state court. This is all that the statute requires that court to do-all it can do. When it has made decision as to these things it has ended its power. Its sole power in this respect is given by

Fargo agt. McVicker.

the acts of congress. A court of general jurisdiction, it
has no power to deny its remedies to any party seeking to
avail himself of its jurisdiction, except in pursuance of these
and similar acts of congress. Its duty beneath these acts
is to determine certain things. When it has determined
those things; when it is "satisfied" certain things exist,
it becomes its duty, in the language of the statute, to "ac-
cept the surety and proceed no further in the cause." No
order for a removal of the cause is necessary.
contemplated to be made by either statute. The court act-
ing solely beneath these statutes is not given power to make
any order. Although the decision of the court in this case
may adopt the language of an order, it is not an order.
is destitute of all force, in so far as it orders anything, and
therefore is no order in any sense.
It is but a decision-a
determination of the court-the statement of its satisfaction
as to certain things. It certainly is not an order within the
definition of the Code. The Code defines an order to be a
"direction of a court or judge." (Code, § 400.)

It

The decision of the only matters competent for the state court to decide under the acts of congress can in no sense be called "directions." They are no more "directions" than is the approval of the surety to an undertaking a "direction," and no more the subject of appeal.

The Code has only provided (except from judgments, which of course has nothing to do with this case) for appeal from such orders as it defines. As the special term in no sense made such an order, in no sense gave any effectual direction (the effect following from its conclusions)—the Code has failed to provide for appeal from any such deeision, (Code, 349, and the cases cited in Voorhies' Code, Sth ed., 680), and of course, therefore, this appeal will not lie.

Nor does any appeal lie under any provision of the Code, even if this be an order. The section providing for appeals from orders (§ 349), can only apply to appeal from this so

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