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Fargo agt. McVicker.
called order, on the ground that it affects a "substantial right." This, the court of appeals, in precisely such a case, has decided that such an order does not do that it does not affect a substantial right. (Illinois agt. N. Y. and N. H. R. R. Co., 3 Kern., 597.)
II. The matters determined by the state court, may be said to have been substantially ministerial in their character, and are either ministerial or to be determined in the discretion of the court. As such, decision upon them is not the subject of appeal.
1. A mandamus can issue from the circuit to the state court in such cases, to compel the transmission of the record, &c., from the state court. (The People agt. The Judges, 2 Denio, 197; Spraggins agt. The County Court, 1 Cooke, 160; Hopper agt. Kalkman, 17 California, 517; Campbell agt. Wallen, Lessor, 1 Mart. and Yerg., 268; In re Turner, 20 Leg. Int., 4; Board of Com. of Knox. Co. agt. Aspinwall, 24 How. (U. S.), 376; Supervisors agt. United States, 4 Wallace, 435; Walkley agt. City of Muscatine, 6 Wallace, 481.)
The very fact that the circuit court could thus compel the transmission of the record, &c., determines the question. that the only authorized action of the state court, is substantially ministerial in its character. Certainly a writ of mandamus cannot issue to compel the transmission of the record, if the party seeking to have the cause removed could obtain his remedy by appeal from a decision that he was not entitled to have the cause removed. Nor would the court issue a writ of mandamus, which, in some measure, implies censure, (Ladd agt. Tudor, 3 W. and M., 325), and which it has a discretion to refuse (Ex parte Fleming, 4 Hill, 581; In the Matter of Van Rensselaer, 1 Cow., 501; Fish agt. Weatherwax, 2 John. Cas. 217; Note), if remedy could be had on appeal. In the comity to be observed between the state and the federal courts, the circuit would not permit the issuing of the writ.
Fargo agt. McVicker.
That the state court, in such matters, acts entirely in a substantially ministerial capacity, is evident. Certainly it cannot act as a court of the state of New York. It but exercises certain powers given it by act of congress. As has been said, it is a court of general jurisdiction, and cannot deny its remedies to any party invoking them, except in pursuance of some act of congress. Congress cannot confer jurisdiction on the courts of this state, as courts. (Martin agt. Hunter's Lessee, 1 Wheaton, 304, 330; The U. S. agt. Lathrop, 17 J. R., 3; In re Bruni, 1 Barb., 187.)
If congress could confer such jurisdiction, it could interfere with such jurisdiction-limit it—deny it.
It follows that, in this respect, the state court but fulfills a ministerial duty, and its action cannot be the subject of review in that court.
2. The matters to be determined by the court, are matters only to be established, in the language of the acts of congress, to the "satisfaction" of the court. The state court, most certainly as to the questions of the amount of the matter in dispute, and the sufficiency of the surety, in the exercise of its discretion, is to be only "satisfied." When satisfied, it must "accept the surety and proceed no further in the cause." It really makes no order and, of course, renders no judgment. Aside from the fact that the Code provides no appeal save from orders and judgments, it certainly would be an anomaly,which should, in any court, permit appeal, or any review of a simple conclusion of a court which it was "satisfied" it should reach, a conclusion upon which it took no action, made no order which could be called an order, and rendered no judgment. That appeal will not lie from even an order made in the exercise of judicial discretion is, of course, familiar law. Much less can it lie from such determination as the state court is only empowered to make upon such application as was made in this case. (Carey agt. Cobbett, 2 Yeates, 277.)
3. Were the plaintiff in such cases remediless in case
Fargo agt. McVicker.
wrong determination were reached by the state court, of course the application of the views here presented would work hardship. He is not remediless as will be subsequently shown.
III. No appeal lies in the state court, for the reason that the cause is by the order of the court (if the decision of the court sought to be appealed from can be called an order), removed from the state court and is no longer pending in it. If the action be not pending in the state court, (whether by order of removal or operation of law can make no difference), of course no appeal can be taken therein. The application of this rule can work no hardship for the reason that the plaintiff, claiming that the cause has been improperly removed, may and can seek his remedy in the court where the cause is after its removal.
1. The appeal is from the so-called order of the special term of the supreme court establishing the facts, upon the establishment of which the state court is bound to accept the surety, &c. If the cause be then removed by operation of law certainly it is not pending in the state court. Waiving that question, however, it is sufficient to say that the state court has by its so-called order ordered the removal of the cause, that the record be sent to the circuit, and the circuit has received the cause by its own express order. The cause itself and the proceedings in it-its essence and the forms and substance in which it only can exist,-its soul and body, so to speak-are no longer in the state court. As no cause is pending in the state court, of course no appeal can be there taken or heard, for there is no pending cause in which there can be any such appeal. It may be said, in pure theory, that there is no record remaining in the state court which can be sent up to the general term for its inspection so that it may be ascertained what are the questions sought to be presented on the appeal.
2. It is familiar doctrine that in such and kindred cases, the record and the cause are removed when the proceedings
Fargo agt. McVicker.
for removal are perfected, (and proceedings under this socalled order of the special term were not stayed), and cer tainly when the court to which it is sought to remove the cause, whether it be by appeal, or writ of error, or certiorari, or by operation of law, has received the cause and its record.
It is equally familiar doctrine that thenceforth all action in the cause must be taken, and all remedy sought in the court where the cause and its record are. This point can be sustained by a multitude of authorities besides those here indiscriminately cited. (Lloyd agt. Skutt, 1 Douglas, 250; Acount agt. Swift, 1 Lord Raymond, 329; Barnum agt. Seneca Co. Bank, 6 How. Pr. R., 82; Bradley agt. Van Zandt, 3 Code R., 217; The Josephine, 1 Abb. Ad. R., 481; Wylie agt. Cox, 14 How., (U. S.) 1; Stafford agt. Union Bank, 16 How., (U. S.) 135, 138; Kanouse agt. Martin, 15 How., (U. S.) 198; Gordon agt. Longest, 16 Peters, 97; 2 Burrill's Practice, 249, &c.)
Suppose the order of the special term should be reversed by the general term, would such decision recall to the state court the cause already removed to the circuit court? What possible effect could such decision have upon the circuit? Most certainly it could not be operative upon the circuit to cause it to send back the cause to the state court. Nor could it be operative to recall the cause. Beyond all question the cause, under the executed order of the special term, is now in the circuit. After reversal of that order, if it be reversed, where will the cause be? in which court? It is in the circuit, and can only be got back to the state court by the order of the circuit remanding it to the state court.
3. It has been directly held that when the cause has been thus sent to the circuit, the state court has lost all control over it. (Livermore agt. Jenks, 11 How., 479; Jones agt. Seward, 41 Barb., 269, 273; Akerly agt. Vilas, 8 Law Reg. N. S., 229.)
4. The circuit has power to so remand the cause if the
Fargo agt. McVicker.
special term of the state court erred in its conclusion. In that court, where the cause is, the plaintiff must seek his remedy. (Hubbard agt. The Northern R. R. Co., 3 Blatch., 184; Ward agt. Arredondo, 1 Paine C. C. R., 410; New Jersey agt. Babcock, 4 Wash. C. C. R., 344; Urtetiqui agt. Darcy, 9 Peters, 692.)
Second-The cause is not in the state court. It is in the circuit court (aside from the effect of the so-called order of the state court) by operation of law. As the cause is not in the state court, that court can have no control over it,— can "proceed no further in the cause."
I. Whatever it may be necessary to claim, or whatever may be well claimed in another case, it is plain that in this case every statutory requisite was complied with, and that the cause is removed out of the state court by operation of law. At most, all that is necessary in the state court is the establishment of certain things, the compliance with certain statutory requisitions and the state court can proceed no further in the cause.
When the requisite citizenship of the parties and the amount in controversy are established to the "satisfaction" of the state court, &c., the statute is imperative that it "shall be the duty of the state court to accept the surety and proceed no further in the cause." All necessary things have been established in this case to the "satisfaction of the court. The statute has imposed the consequent duties upon the court. The cause is removed by operation of law into the circuit, for the statute says it "shall there proceed in the same manner as if brought there by original process.' This must be apparent from the language and the object of the statutes.
II. But that the cause is so removed by operation of law is decided directly in several cases, necessarily, but indirectly in others. (Livermore agt. Jenks, 11 How. Pr. R., 479; Jones agt. Seward, 41 Barb., 259, 273; Fisk agt. Union P. R. R. Co., U. S. Circuit Court, S. Dict. N. Y.,