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(No. 6.

Vol. II.

OSGOOD v. CHICAGO, DANVILLE, AND VINCENNES R. R. Co.

same state, the effect would be to remove this last as well as the other, and therefore, the federal court would take jurisdiction of a controversy between citizens of the same state, which would be unconstitutional.

If we were to admit the premises we hardly think the conclusion would follow. If the whole suit is removed because of the principal controversy between citizens of different states, and in order to fully determine that, as between them, other controversies between citizens of the same state arise in the suit, there is no objection to the federal court taking jurisdiction of the latter. It is a matter of common practice to do this in the settlement of legal and equitable rights. Having control and jurisdiction of the principal, the incidents go with it. In every case where this court forecloses a railroad mortgage, this doctrine is enforced ; so that the true rule even on the hypothesis stated, would seem to be to ascertain whether this court had jurisdiction of what may be regarded as the main controversy, and whether the others, between citizens of the same state, are mere incidents of such controversy. In this case the claims of the defendant creditors, it is presumed, depend on the effect and validity of the mortgages, which, if sustained, give the bondholders the paramount claim. The former may therefore be said to attend the mortgage debts. If this is so, there is no good reason why the whole suit may not be removed to this court. Whether the act intends to authorize the removal of the whole suit, in every case where there is a controversy between citizens of different states, and which can be fully determined as between them, without regard to other controversies in the same suit, and the citizenship of the parties in the suit, and whether, if so, the act is in that respect constitutional, need not be here decided. Neither is it necessary to decide whether the act, in any case where there may be in the suit controversies between citizens of the same state, permits them to remain to be determined by the state court.

Upon the second ground we commence with two admissions made by plaintiff's counsel. They concede :

1st. Under the third section of the act of 1875, the petition for removal and the bond required can be filed in the suit pending in the state court in vacation.

2d. If the statute is complied with, the state court has no discretion, and its refusal to accept the petition and bond, and the omission to note the refusal on the record, would not deprive the party entitled thereto of the right of removal.

These admissions necessarily grow out of the words of the statute. If the facts as named therein exist, then the party entitled to remove the suit may file a petition in such suit in the state court before the term at which the cause could be first tried, and file therewith a bond with good and sufficient security. The bond and petition may therefore both be filed out of term time; they are to be filed in the suit pending in the state court, that is, with the clerk, in the ordinary way in which papers are marked and filed in a suit. Now, if the proper petition and bond are filed with the clerk in the suit pending in the state court by the party entitled to do so, in vacation, what is the status of the case from the time of filing the same until the meeting of the state court ?

According to the view of plaintiff's counsel, the court having had no

Vol. II.)

(No. 6.

Osgood v. CHICAGO, DANVILLE, AND VINCENNES R. R. Co.

opportunity in open court to accept or refuse the bond and petition, there is jurisdiction still in the state court, and the judge of that court can make any order in the case permitted to a judge under such circumstances; that is, he can, if necessary, grant an injunction and in this state) appoint a receiver of property. There ought to be authority somewhere to protect the rights of parties in the contingency named. Having filed the petition and bond with the clerk in the given case, the applicant has done all that the statute requires. He need not call upon the court to act at all. No order is to be made in court, at least the statute names none, unless the mandate that the court “ shall accept the petition and bond " implies one.

The language is somewhat different in the other statutes : “Shall accept the surety.”

When is it that the court shall “ proceed no further in such suit?” It is well to notice the different language in another part of the section. When the suit relates to the title of land, and is between citizens of the same state, then the value must be made to appear, and certain statements (and affidavit if required by the court) must be made, all showing the court is called on to act. But it is said that, in this case, the court must judge whether the bond has good and sufficient security, and must accept that and the petition.

It may be proper to consider the former legislation on this point. The act of 1789 required, in order to effect a removal from the state to the federal court, that the defendant should, at the time of entering his appearance in the state court, file the petition for removal.

The act of 1866 declared that the petition might be filed “at any time before the trial or final hearing of the cause ;” but nothing is said as to the manner of filing other than by the use of such general words. The act of 1867 required an affidavit and petition to be filed in the state court at any time before the final hearing or trial of the suit.

These acts were all repealed by the Revised Statutes of the United States, which, however, incorporated their substantial provisions in section 639.

The law in force upon the subject of removal, at the date of the act of 1875, was as follows: “In order to such removal, the petitioner in the cases aforesaid must, at the time of filing his petition therefor, offer in said state court good and sufficient security,” &c.

The act of 1875 for the first time expressly authorized the petition and bond to be filed out of term time. There must have been some object in this change. We think it was to prevent the state court from proceeding further in the case after the proper papers were filed in the suit with the clerk.

There was nothing more to be done in order to perfect the right. A condition of the bond is that the petitioner shall enter in the circuit court of the United States at its next term a copy of the record of the suit, and pay the costs if the suit be wrongfully removed, and is for the benefit of the opposite party.

The seventh section of the statute has an important bearing on the question. It often happens that the terms of the state court are only once or twice a year. If after the filing of the petition and bond in the suit in

hefore the th of filing an affid hearing the

Vol. II.)

Osgood v. CHICAGO, DANVILLE, AND VINCENNES R. R. Co.

(No. 6.

the state court not in term, the circuit court of the United States should sit before the state court; for example, the former in one month and the latter in two months from the time of filing the petition and bond, if there must be an opportunity for the state court to act on them before the right of removal is perfected, how is it possible for the petitioner to comply with the condition of the bond ?

The only answer that can be given is, that in spite of the words of the third section, that the bond and petition may be filed before the term, there is in fact and law no filing of the petition and bond until the court is in session, in effect thereby striking those words out of the statute; and thus the state judge has power over the case from the commencement till the petition and bond are presented to him while holding court, which we think Congress intended he should not have when they were duly filed in vacation.

Under previous laws, in some instances the clerks of the state court would not give copies of the record when a petition for removal was filed. The recent act imposes a severe penalty in case of their refusal to furnish a copy of the record after tender of the legal fees, to any one applying for removal, not when the removal is ordered or refused by the court. It is said, there must be a power in the state court to determine whether the petition and bond are sufficient, and whether the case is removable under the statute. It is true that the party seeking the removal of the cause must be entitled to the same, but we think the statute did not intend to permit the state court to judge in such a case as this whether a proper case was made. That was one of the difficulties under former statutes. If the state court chose to proceed, the only remedy was supposed to be through the highest court of the state, to the supreme court of the United States. See Hough v. W. T. Company, 1 Bissell R. 425; Akerly v. Vilas, 2 Ib. 110; In re Cromie, Ib. 160, and authorities cited in those cases and notes. This statute gives the circuit court of the United States power to issue the writ of certiorari to the state court in any cause removable under the act, and therefore to the federal court the right to determine whether the cause is properly removable.

It is claimed by the plaintiff's counsel that is given when the state court refuses to act. But the state court may omit to place on the record the refusal or non-action, and whether it does or not there can be no object in issuing a writ of certiorari, the sole effect of which is to bring the record into the federal court, if it is already there duly certified by the clerk under the seal of the state court. This statute has not given power to the circuit court of the United States to compel the state court to act by writ of mandamus or otherwise. The sole object of the writ of certiorari, as the statute itself says, is to make return of the record.

The fifth section contains provisions which are new. It is true that in practice under previous laws, when a case came into the federal court by

108 under pre dose laws wetion case call the momento dismica removal from the state court, motions could be made to dismiss and remand the case, but their decision depended on general principles. Now, the fifth section controls the action of the federal court, both as to the dismissal and remanding of cases. It did not intend the suit should be dismissed or remanded, on account of irregularities, provided it satisfactorily appeared that the court had jurisdiction of the cause. Here the

kuninto the writ ofn, and in

Vol. II.]

[No. 6.

BARNEY v. LEEDS.

only thing to which objection is now made is as to the character of the suit, and the want of opportunity of the state court, as a court, to act or refuse to act. There is no complaint made against the sufficiency of the bond.

It is said, we treat the state courts with disrespect in not allowing them to pass upon the case under the statute. We would treat them more disrespectfully if we disregarded and overruled their action, as it is admitted we would have the right to do in a proper case.

What might be the effect of the record of the state court being filed in the federal court before the term next after the filing of the bond and petition in the suit in the state court, upon the general status of the case, it is not necessary to consider. There possibly might be a question whether the case would be in every respect before the federal court prior to its next term.

It may be admitted there are difficulties in any view we may take of this part of the case, but we are at a loss to understand how the fact that the state court has had the opportunity to pass upon the application can alone confer the right of removal, when it is admitted that the action or non-action of the state court may be immaterial.

If the petitioner has brought himself and is within the terms of the law, and the right of removal is complete, then when there is added to that a copy of the record duly filed in the federal court (and special bail given when requisite), the åct of removal has taken place.

SUPREME COURT OF NEW HAMPSHIRE.

(To appear in 54 N. H.)

HOMESTEAD EXEMPTION. — APPRAISAL. — PARTITION.

BARNEY v. LEEDS.

The appraisal of a committee setting off à debtor's homestead upon the levy of an execu

tion is conclusive upon the question of its value, until invalidated by some proceeding brought for the purpose of vacating or revising the record thereof. It cannot be called in question upon a subsequent proceeding for partition between the debtor and his

creditor, to whom the residue of the estate has been assigned. Whenever the estate of tenants in common is practically incapable of division by as

signing to each owner thereof his equal portion in severalty, he cannot be compelled, by force of the provisions of sec. 25, ch. 228, Gen. Stats., either to sell his own share or purchase that of his co-tenant ; but, in such case, resort may be had to a court of equity, which has power to compel a sale of the entire estate, and order distribution of its proceeds upon equitable principles.

PETITION for partition, under the statute, by Eleazer Barney against Carey Leeds. At the March term, 1873, there was judgment that partition be made, and, by agreement of the parties, Ñ. B. Felton, Esq., alone, was appointed a committee to make partition.

At the September term, 1873, his report comes in, wherein he finds (1)

Vol. II.)

BARNEY v. LEEDS.

(No. 6.

Felton to him by meas estopped at the time

that the premises cannot be divided without great prejudice; (2) that the value of the whole, September 22, 1866, was $800; (3) that on said twenty-second day of September, 1866, said Barney's interest in the premises accrued to him by the levy of an execution thereon ; (4) that the right of said Leeds therein is a right of homestead existing at the time of said levy; (5) that the whole premises were appraised at $600 in making said levy; (7) that said Leeds, at the hearing before said Felton, demanded that the whole or a part of said premises should be set off to him by metes and bounds as and for a homestead, and claimed that said Barney was estopped from showing that the value of said premises was more than $600 at the time of said levy; (8) but the committee recommends “ that the whole of said premises be assigned to said Barney, he paying to said Leeds, or securing to him in such manner as the court may order, the sum of $500 and interest thereon, unless said Leeds shall pay to said Barney, or secure to him in such manner as the court may order, the sum of $300 and interest thereon, or $100 and interest thereon, whichever of said sums the court may direct, - in which case I recommend that the whole of said premises be assigned to said Leeds ; (9) subject to the exception of said Leeds, said Barney was permitted by the committee to testify as to his opinion of the value of said premises at the time of the levy, that it was much more than the sum at which they were appraised; and the committee reports that if said Barney's opinion in reference thereto was not competent, then he appraises the same at $600.

As to the qualification of said Barney to give such opinion, the committee finds certain facts, which were referred to the court and which appear in the opinion.

The defendant moved that the report be set aside, and also that it be recommitted, and filed eleven objections in writing thereto, as follows:

I. The plaintiff at the hearing before said committee failed to show himself competent, either as an expert or otherwise, to give an opinion as to the value of the premises bounded, described, and appraised by the levy of September 22, 1866.

II. The plaintiff's rights depend upon and are measured by said extent, of which the appraisal was an integral part, and by which, as the court have decided (51 N. H. 285), “ the whole estate" was “ appraised” “at $600.” The committee, in substance, reports what was true, that there was no testimony before him, except that of the plaintiff, tending to show that the premises were worth at the date of the levy more than $600, and that he found the premises to be worth more upon the unsupported opinion of the plaintiff, — he (subject to the defendant's exception) having testified that, at the time of the completion of the levy and the appraisal, the entire premises levied upon were worth $1,000.

The plaintiff cannot be permitted by his opinion to diminish the defendant's share and add $400 to the $100 set off to him by his own appraisers, by showing that they made a false or fraudulent appraisal.

III. The plaintiff is estopped from contradicting by his own opinion the appraisal, by men of his own selection, upon which his title rests.

IV. The order of the court (51 N. H. 287) was, that the defendant's share should be set out to him by metes and bounds." The order of

that the found the premises (subject to elion

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