Proceedings-Order to show cause.

effect a removal. Carpenter v. New York and New Haven Railroad Company, 11 How. 481.

Section 4. Proceedings. After the requirements of the statute have been fully complied with by the party making application for removal, and no sufficient objection being shown, it becomes the positive duty of the State court to grant the order and proceed no farther with the cause. When the proper papers are presented the State court has not the legal discretion to refuse an order removing the cause. Gordon v. Longest, 16 Pet. 97; Stevens v. Phænix Ins. Co. 41 N. Y. (2 Hand) 149. The State court is, however, to exercise a discretion in determining whether the case is within the statute and to deny a removal in doubtful cases. Anderson v. Manufacturers' Bank, 14 Abb. 436; James v. Thurston, 6 R. I. 428.

The order once made cannot be vacated, or the court reinvested with any jurisdiction over the case in any form. Livermore v. Jenks, 11 How. 479; Liddle v. Thatcher, 12 id. 295. The court may remove the cause to either district it deems proper (Suydam v. Smith, 1 Denio, 263; Norton v. Hayes, 4 id. 245), and after removal the proceedings in the cause must be in accordance with the rules of the court into which the removal is made. Suydam v. Ewing, 1 Code R. N. S. 294.

The petitioner, after removal, must perfect proceedings, by entering an appearance in the circuit court before next term of the same, enter special bail where an order of arrest has issued from the State court, and file certified copies of the process and papers by which the action was originally commenced. Martin v. Kanouse, 1 Blatchf. C. C. 149. When such copies have been entered a new declaration must be filed in the circuit court by the plaintiff, Clarke v. Protection Ins. Co., 1 Blatchf. C. C.

150.

An appeal does not lie to the court of appeals from an order removing a cause to the United States court. Illius v. New York and New Haven R. R. Co., 13 N. Y. (3 Kern.) 597. See Kanouse v. Martin, 6 How. 240; S. C., 1 Code R. N. S. 385.

(Title of cause.)

Order to show cause.

The defendants having this day entered their appearance in this cause, and at the same time filed a petition praying for a removal of this action to the circuit court of the United States for the pursuant to the act of congress of

district of

In other cases.

the United States in such case provided, and offered the surety as therein provided by an undertaking now filed. It is ORDERED: That the plaintiffs show cause on the

day of noon, at a special term why the prayer of the said

Order removing cause to the United States Circuit Court.

18

district of

(Title of cause.) (At a special term, etc.) A petition having been filed by the defendant in this cause at the time of entering his appearance herein, on the day of praying for the removal thereof into the circuit , pursuant to the statutes of the United States in such case made and provided, and the said petitioner having offered good and sufficient security pursuant to the directions of, and as required by, the said statute: now, on motion of of counsel for the petitioner, and after hearing

court for the

of counsel for the plaintiff, in opposition thereto, it is declared that it is made to appear, to the satisfaction of this court, that the present suit is commenced in this court by a citizen of the State of New York against a (citizen of another State), and that the matter in dispute exceeds $500, exclusive of costs. And it is hereby further declared and

ORDERED: That this court accepts the surety offered by the petitioner, and that the said cause be removed for trial unto the next circuit court to be held in the district of the State of pursuant to the said statutes; and that this court do proceed no further therein, and that all proceedings in this court, in the said cause, be and the same are hereby stayed.

And it is further ordered, that this removal shall not operate of itself to dissolve the injunction heretofore issued in this cause, but the same shall remain in force until dissolved by this court, or by the said circuit court.

Section 5. In other cases. The proceedings on the removal of a cause from a State to a federal court, in cases other than those embraced in section 12 of the judiciary act, differ materially in many respects from the proceedings already described.

In cases under act of congress, March 2, 1833, the removal is effected by means of a writ of certiorari or habeas corpus, issued by the federal tribunal, on petition of the defendant, and not by any application to the State court in which such controversy is pending. Act of Cong., March 2, 1833, § 3; 4 Stat. 633. A cause commenced in any State court may be removed into the circuit court of the United States, under the act of congress, March 3, 1863, upon filing a petition, stating the facts, duly veri

In other cases.

fied, at the time of entering an appearance in such court; or, after final judgment, by an appeal, during the session or term of said court at which such judgment shall have taken place ; · or, within six months after the rendition of a judgment in any such case, by writ of error or other process, to remove the same to the circuit court of the United States, of the district in which the judgment shall have been rendered. See Act of Cong., March 3, 1863, ch. 81, § 5. So much of the above section as authorizes the removal of a cause after verdict, and a trial and determination of the facts and the law, has been declared unconstitutional. Patrie v. Murray, 29 How. 312; S. C., 43 Barb. 323; Benjamin v. Murray, 28 How. 193. 9 Wall. 274.

The last cases in which proceedings for removal remain to be noticed are such as come under the provisions of act of congress, March 2, 1867, relating to the removal of certain suits into the circuit court of the United States, when, from local influence, etc., justice cannot be had in the State court. To obtain a removal under this act it is required of the party seeking the removal to make an affidavit that he has reason to believe, and does believe, that, from prejudice or local influence, he will not be able to obtain justice in the State court, and he must file the same, with a petition, and offer the requisite security for proceeding in such court; and thereupon, in actions where the matter in dispute exceeds $500, the State court is directed to accept the security and proceed no further in the suit. Act of Cong., March 2, 1867; 14 U. S. Stat. at Large, 558. An application for the removal of a cause from a State court into the federal court under this act, should not be granted, when made by one of several defendants. Cooke v. State National Bank of Boston, 1 Lans. 494.

The cases in which a cause may be removed from a State court into the circuit court of the United States, enumerated in the last section, under the respective acts of congress, conferring the power of removal, being of comparatively rare occurrence in practice, a brief notice of the proceedings under each has been deemed a sufficient guide, in this connection, to the practicing lawyer or the diligent student.

CHAPTER VII.

OF THE COURT OF APPEALS.

ARTICLE I.

ORGANIZATION.

Section 1. Early court of last resort. The organization of a court of appeals, or "court of last resort," as it was generally designated, was thus provided for by the first State constitution, adopted in 1777, the 32d article of which declares "that a court shall be instituted for the trial of impeachments and the correction of errors, under the regulations which shall be established by the legislature, to consist of the president of the senate, for the time being, and the senators, chancellor and judges of the supreme court, or the major part of them." In pursuance of this constitutional provision, it was enacted by the legislature that such court should hold its sessions at any time during the sitting of the legislature, on such days, and at such places, as the persons constituting the court should from time to time appoint. Act of Feb. 20, 1801; 1 R. L. 132, § 1.

Section 2. Court for correction of errors, before constitution of 1846. The second State constitution, adopted in 1822, in article 5, section 1, recognizes the existence and organization of the early "court of last resort," and a statutory provision (2 R. S. 166, §§ 24, 25), which is, in substance, a reënactment of the old statute on the subject (1 R. L. 132) defines the powers and jurisdiction of such court. As thus organized by the first constitution of 1777, and by the statutes enacted in pursuance of its provisions, the old court of errors continued to exist under the provisions of the constitution of 1822, as a court of last resort, until its final abolition, in 1846.

Section 3. Court of appeals under constitution of 1846. The court of appeals, as organized in pursuance of the provisions of the constitution of 1846, was composed of eight judges, four elected by the electors of the State for terms of eight years, so classified that one should be elected every second year, and

four selected from the class of justices of the supreme court having the shortest term to serve. Const., art. 6, § 2.

The judge elected by the electors of the State having the shortest time to serve was the chief judge of the court (Laws of 1847, ch. 280, § 5); and six judges constituted a quorum for holding any term of this court. Id., § 6; Oakley v. Aspinwall, 3 N. Y. (3 Comst.) 547.

Section 4. Present organization. The court of appeals, as it now exists, derived its organization from the provisions of the 6th article of the constitution, as amended in 1869.

The court is composed of a chief judge and six associate judges, chosen by the electors of the State, for the term of fourteen years, from and including the first day of January next after their election. Five members of the court are sufficient to constitute a quorum, and the concurrence of four is necessary to a decision. Const. 1869, art. 6, § 2; Laws of 1870, ch. 86.

In case of a vacancy otherwise than by expiration of term, in the office of the chief, or of an associate judge, the same is to be filled for a full term at the next general election, happening not less than three months after such vacancy occurs; and until the vacancy is so filled, the governor, by and with the advice and consent of the senate, or, if the senate be not in session, then the governor alone, may fill such vacancy by appointment. Const. 1869, art. 6, § 3.

Judges of the court of appeals may be removed by concurrent resolution of both houses of the legislature, if two-thirds of all the members elected to each house concur therein. Id., § 11.

ARTICLE II.

JURISDICTION.

Section 1. Jurisdiction before 1846. The jurisdiction of the old "court for the correction of errors," which as a court of law was exclusively a court of appeal, was derived from the constitution of the State (Const. 1777, art. 32), and fully designated by statute. 1 R. L. 133, §§ 7 to 10; 2 R. S. 166, §§ 24, 25.

Its jurisdiction was wholly appellate, and it could be exercised only where some question had been actually presented to the court below for its determination, and a judgment or decision