Durand v. Hollins — 10 N.Y. Super. Ct. 686

Majority

p. 686

Durand v. Hollins.

Headnote

A citizen of another State, who is sued by a citizen of this State, in a court of this State, and who files a petition to remove the cause to the Circuit Court of the United States, and at the same time complies with all the provisions of the act of Congress relating to such matter, does not lose the right conferred by such act, because he had been arrested previously under an- order requiring him to be held to bail, and on such arrest had executed with sureties such an undertaking as is required by § 181 of the Code, although no exception had been taken to such sureties, and the time for excepting had expired, before the petition was filed.

Executing such an undertaking is not, in theory nor in fact, an act done in court. It is not an appearance in the action, nor equivalent to an actual appearance, within the meaning of the words, “ entering an appearance,” as used in the act of Congress. They import an act in court, by which a defendant concedes that the State Court has full jurisdiction over him.

At Chambers,

Sept. 28, 1854.

The defendant, being a citizen of the State of Delaware, and having been sued in this court by the plaintiff, a citizen of this

p. 687

State, on the 9th of September entered his appearance in the action with the clerk of the court, and at the same time filed with the clerk a petition to remove the cause to the Circuit Court of the United States for this district. The petition is now presented to the court, and such security is offered as complies with the act of Congress. The defendant was arrested on the 24th of August last, under an order requiring him to be held to bail. He then executed an undertaking with two sureties, as is required by § 187 of thenCode. On the 28th of August, the sheriff returned the order of arrest to the plaintiff’s attorney, with a certified copy of the undertaking. Ho notice was served on the sheriff by the plaintiff’s attorney, within ten days thereafter, that he did not accept of the bail.

The motion was opposed mainly on the ground that the petition should have been presented before the time for excepting to the sureties in the undertaking executed by the defendant on his arrest had expired. That the expiration of such time, without any exception having been taken to the sureties, was of the same effect, in this respect, as putting in special bail under the old system.

L. B. Shepard, for plaintiff.

J. M‘Keon, for defendant.

Full compliance with the act of Congress gives the defendant an absolute right to have this action remoyed to and tried in the Circuit Court of the United States. The plaintiff’s counsel insists, that the defendant has not complied with it, but, on the contrary, by executing an undertaking on his arrest with sureties, who were not excepted to within the time allowed by § 193 of the Code, which time expired before the petition was filed, has lost the right to remove the action. He relies on Redmond v. Russell, 12 J. R. 153. It was held in that case, that a defendant who puts in special bail must, at the time of filing bail, also file his petition to remove the cause, and that one subsequently filed would be too late. This was so held on the ground that filing special bail was entering an appearance, according to the practice of the

p. 688

court—that such being the effect of the act of putting in bail, the defendant, consequently, then, and by that act, entered his appearance, within the meaning of those words as used in the act of Congress, and of course was bound to then file his petition, as the two acts are required to be simultaneous. It will be borne in mind, that filing special bail with the clerk of the court was, in legal effect, an act in court, by which the defendant conceded that the court had full jurisdiction over him. Ho appearance was formally or actually entered in this case, until the filing of the petition, both of which were done on the 9th of September. The execution of the undertaking requisite to procure his discharge from arrest, was not an act of the defendant, done, either in theory or in fact, in court. It is obvious that giving such an undertaking was not itself entering an appearance, any more than giving the bond formerly taken by the sheriff on the arrest of a defendant in a bailable action, conditioned that the defendant would appear and put in bail, was entering an appearance. (2 R. S. 348, § 14.)

It clearly could not be required of a defendant to file a petition simultaneously with executing such an undertaking. That would be impracticable. If the giving of.that undertaking was not entering an appearance, then none was entered until the 9th of September; for between those periods the defendant took no steps in the action. Although the time for excepting to the bail had elapsed before the petition was filed, yet, so far as the papers before me state, nothing then appeared on record, or on the files of the clerk of the court, to show that bail had been put in. In Suydam v. Smith, 1 Denio, 265 , the court remarked that “ the terms ‘ entering an appearance,’ used in the act of Congress, are not appropriate words to indicate the putting in of bail They simply mean that the defendant shall, by entering his appearance, concede that the State court has full jurisdiction over him.” In this action, the defendant had done no act in court, nor did any paper signed by him or any attorney retained by him, appear on the files of the court, which the Code, or the rules made under it, declare to be equivalent to an appearance, or an actual appearance.

A party’s appearing, by the filing of special or common bail, has no application to proceedings under the Code. I am of

p. 689

the opinion, that the defendant had not entered his appearance, within the meaning of those words, as used in the act of Congress, until it was actually entered on the 9th of September. The prayer of the petition is therefore granted.