Majority
p. 11RHODE ISLAND HORSE SHOE CO. v. GOODENOUGH HORSE SHOE CO. N. Y. Supreme Court; First Department; Special Term, November, 1876.
Headnote
Mode op Filing Petition to Remove Cáese.In the supreme court, in the city of Hew York, where there is no vacation or cessation of terms, the petition and bond required
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under the act of 1875, to effect a removal of a cause to the United States circuit court, must be presented to the court, and upon notice to the adverse party.
Filing them with the clerk is not enough.[1]
The Rhode Island Horse Shoe Company brought an action in this court against the G-oodenough Horse Shoe Manufacturing Company, for goods sold and delivered. Defendant, during the sessions of the court, filed with the county clerk a petition and bond for the removal of the cause to the United States circuit court, on the ground that the plaintiff was a corporation of another State, and relied on this, of which he gave information to plaintiff’s attorney, as effecting a removal of the cause, under the act of 1875, p. 33, below.[2]
Plaintiffs’ disregarded the removal claimed, and, in due time, entered judgment by default.
Defendants now moved to vacate the judgment, because entered after a removal had been effected.
Starr & Ruggles, for defendant.
Tracey, Olmsted & Tracey, for plaintiff.
The petition and bond should have been filed in the supreme court, and not in the office
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of the county clerk. The county clerk is ex officio the clerk of the supreme court in this county, but his office is not the supreme court. Then the court has a duty to perform, viz., to accept the petition and bond and proceed no further in the suit. This duty cannot be performed by the county clerk—the statute imposes it upon the court. Further, the bond must be with “good and sufficient surety.” It is such a bond, and such a bond only, that the court is required to accept. It is for the court, and not for the clerk, to accept a bond with good and sufficient surety. This construction is the only reasonable one. In this county there is no vacation such as would prevent a party from presenting his petition and bond to the court. The special term is in session every day in the year, except Sundays and legal holidays. It would be contrary to precedent, and subversive of the orderly administration of justice, to permit any serious step in a cause without notice to the party to be affected. The act should be read in the light of this just principle.
Then consider the effect of the opposite construction. The claim here is that the mere filing of the petition and bond in the clerk’s office, without notice to the plaintiff (that given him being a mere act of courtesy), worked a removal, and this although the court was in session at the time. In other words, that a plaintiff who brings a suit in our courts may, in complete ignorance of the removal, proceed to judgment and execution only to find himself a trespasser. If Congress meant this, the language should have been so precise and specific that no other construction could possibly be put upon it.
The motion must be denied, with ten dollars costs.