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a full, true, and complete copy of the record, and all papers and proceedings in the said cause, plainly and distinctly, and in as full and ample a inanner as the same now remain before you, together with this writ, so that the said Circuit Court may be able to proceed thereon, and do what shall appear to them of right ought to be done. Herein fail not. Witness, the Honorable
Chief Justice of the Supreme Court, and the seal of the said Circuit Court hereto affixed this day of
[Signature of], Clerk of said Circuit Court.
FORM No. 470.
Certiorari to remove papers in case of prejudice or local influence. The President of the United States of America to the [Judge of
the] Court of [naming it in full.] Whereas, it hath been represented to the Circuit Court of the United States for the
that a certain suit of a civil nature involving in controversy an amount exceeding the sum of $2,000, exclusive of interest and costs, was coinmenced in the [name of State court in full] for the purpose of (give nature of the suit] wherein A. B., a citizen of the State of
was plaintiff, and Y. Z., a citizen of the State of was defendant, and that before the time at which said cause was first triable at law said Y. Z. duly filed in the Circuit Court for the District of
his petition for the removal of said cause into the said Circuit Court on the ground of prejudice or local influence, and duly filed with said petition the bond with surety as required by the laws of the United States, (and it appearing that A. B. had due notice of the application for removal] and it further appearing to this court that from prejudice and local influence in favor of the plaintiff and adverse to the de fendart said defendant will be unable to obtain justice in said court of the State of
or in any other court of the said State to which by the laws thereof he may have reCoursc.
You, therefore, are hereby commanded forthwith to certify, or cause to be certified, to the said Circuit Court of the United States for the
a full, true and complete copy of the record, and all papers and proceedings in the said cause, plainly and distinctly and in as full and ample a manner as the same now remains before you, together with this
writ, so that the said Circuit Court may be able to proceed thereon, and do what shall appear to them of right ought to be done. Herein fail not. Witness, the Honorable
Chief Justice of the Supreme Court, and the seal of the said Circuit Court hereto affixed, this day of
[Signature of ], [Seal.]
Clerk of said Circuit Court.
FORM No. 471.
Petition for order directing marshal to take property from the possession of
officer of the State court.39 United States Circuit Court, District of [Title of cause.] To the Circuit Court of the United States for the
District of Your petitioner shows:
I. That he is the in the above entitled action. That said action was commenced in the
county, State of (or otherwise specifying the court].
II. That under the laws of the United States your petitioner
39 This and the following two forms are from Friedman v. Israel, 26 Fed. Rep. 801, where it is conceded that the Circuit Court has no power to issue an injunction, prohibition, or process for contempt to stay the State court from proceeding with the
But the court say: “The life of a judgment lies in the power of the court to execute it, and it is essential to competent jurisdiction that the property in attachment suit, whether in the State Federal courts, should be in the legal custody of the court, otherwise a judg. ment affecting the res in the case would be an idle formality. The power of the Circuit Court to try the case, after it is properly removed, carries with it the authority to issue such orders as are necessary to make its jurisdiction effectual for enforcing the supremacy of the Constitution and laws of the United States."
of this court, physically to go on now and try the case; but its judicial power to continue its possession of the res, through the hands of its sheriff, is at an end, and his posses. sion is not the possession of the law.”' Friedman v. Israel (above).
See also Kern v. Huidekoper, 103 U. S. 485, 490, where it was held that a replevin action, wherein the sheriff of a State court is the defendant, is removable, notwithstanding the objection that the sheriff being in possession of the property, the subject. matter of the controversy, the Federal court is without legal authority or power, by writs, process, or orders, to wrest its possession from him. When the removal is accomplished, the State court is left without any case, authority, or process by which it can retain possession of the res.
“True, the State court has the power, whatever may be the decision
And the further prosecution of the action in the State Court can be en
Wagner ". Drake, 31 Fed. 849; Abeel r. Culberson, 56 id. 329; St. Bernard Min. Co. v. Mad. Traction Co., 130 id. 795.
was and is entitled to remove said action from said State court to the Circuit Court of the United States for the circuit and district above mentioned.
III. That in due time he presented to said State court a proper petition for removal, sustained by affidavit, and also bond with security, conditioned as required by the laws of the United States.
IV. That the said State court refused to receive said bond, and disallowed the petition for removal.
V. That thereupon your petitioner obtained from the clerk of said State court duly certified transcripts of the record of said action, and has filed the same with the clerk of this court, and said action is now on the docket of this court.
VI. That when said petition for removal was filed, and said bond was tendered in said State court, the jurisdiction of this court attached, and the jurisdiction of said State court ceased.
VII. That as appears from the transcript so as aforesaid filed in this court in said action, an attachment had issued to the sheriff of county, under which the sheriff of said county (naming him) attached and took into his possession, and now holds, certain property, as shown by the return on said writ of attachment.
VIII. That by effect of the removal of said action, and by operation of law, the property so attached passed from the jurisdiction of said State court to the jurisdiction of this court, and that the marshal of this
should take possession of and hold said property, so as aforesaid attached, subject to the further order of this court.
WHEREFORE, your petitioner prays for an order directing said marshal to take possession of said property so attached, and to hold the same, subject to the further order of this court, and for such other and further relief in the premises as may be just. [Date.]
[Signatures.] [Signature and address of],
Attorney for petitioner.
[Verification as in Form No. 457.]
FORM No. 472. Order directing marshal to take property from the possession of officer of the
State court. United States Circuit Court, District of [Title of cause.]
The marshal of said District of is hereby authorized and directed to proceed to
and to demand and take possession of any and all property attached, and now held by the sheriff of
county, under a writ of attachment issued in above entitled action by the [naming court or judge that issued warrant), said property to be by said marshal safely held until the further order of this court.
This done and signed in open court. [Date.]
[Signature of judge.]
FORM No. 473. Order denying motion to remand to State court, and to vacate order directing marshal to take property from possession of officer of State court.
United States Circuit Court, District of [Title of cause.]
This cause came on to be heard on the motion of plaintiff to remand the same to the State court, and to rescind the order herein issued on
19 directing the marshal to demand and take into his possession property attached in this case, and bring the same into this court, and was argued by counsel ; whereupon, and upon consideration thereof, it is ordered that the motion to remand this cause to the State court be and the same is hereby overruled, and that the motion to rescind the order directing the marshal to demand and take into his possession property attached in this case, and bring the same into this court, be also overruled, and that said order be maintained.
[Signature of presiding judge.]
FORM No. 474.
Order remanding cause. [Caption and title and recitals as in other cases, adding statement of ground of remand, for instance, thus:] and it appearing by inspection of the record that the defendants are not both citizens of another State than the plaintiff and that said Y. Z. is a citizen of the State of
; [or thus, the petition for the removal of this case from the State court of
to this court failing to aver that the parties were citizens of different
States at the commencement of this suit, and it further appearing from the admission of said parties that both plaintiff and defendant were citizens of at the time said suit was commenced, the court is of opinion, and adjudges, that it is without jurisdic tion.] Now, therefore, it is ORDERED, that the motion to remand be and the same is hereby granted, ana that the cause be and the same hereby is remanded to the
Court [name in full], and that the plaintiff have and recover of the defendant his costs incurred in this court, and have execution therefor.
VI. LAND GRANT CASES. These cases are regulated by section 3 of the Act of 1875, as amended by the Act of 1887. The amendment consists simply in increasing the limit to $2,000, exclusive of interest, as well as of costs.
These cases are too rare to justify occupying space with forms.
VII. CIVIL RIGHTS CASES.
1. Civil rights cases.
FORM. (475) Petition for removal of cause against person denied civil rights, from
a State to a United States court.
1. Civil rights cases.] - Prosecutions, civil or criminal, may be removed before trial"' by a defendant who is denied his equal civil rights, and prosecutions, civil or criminal, against an officer for conduct*l under the Civil Rights Acts, may be removed under U. S. R. S., § 641.
40 See p. 783 of this volume, paragraph 4.
The existence of a State statute excluding citizens of African descent from a grand or petit jury, held not to furnish ground for removal under $ 641. where the highest court of the State had pronounced the statute unconstitu: tional. After that decision it could not properly be said in advance of a trial that the defendant in a criminal prosecution was denied or could not enforce in the judicial tribunals of that State the rights secured to him by any law providing for the equal civil rights of citizens of the United States, or of all persons within their jurisdiction. Bush 1. Kentucky. 107 U. S. 110, 116.
The remedy of removal given by $ 641 does not apply to all cases in which equal protection of the laws may be denied to a defendant. The Fourteenth Amendment to the Federal Constitution is broader than U. S. R. S., $ 641. which does not embrace a case in which a right may be denied by judicial