Ficklin v. Tarver

Bleckley, Judge.

A citizen of Yirginia, as sole complainant, had a bill in . equity pending in Baker superior court, against several citizens of Georgia, and a citizen of New York. The amount in controversy was over ten thousand dollars. Service had been duly effected on the Georgia defendants, but, so far as appears, none had been effected on the New York defendant. At the appearance terra, after notice to counsel who represented one of the Georgia defendants only, the complainant petitioned, in terms of the act of congress of March 3, 1875, for a removal of the cause to the appropriate circuit court of the United States, filing, for -accept-a.nce by tbe court, tbe requisite bond and security, according to the act. Objection was made, on the part of the defendant represented by counsel, that the other defendants had not been notified of the application. The court, thereupon, refused to consider and act upon the application, until the other defendants wex-e notified of it. This refusal is excepted to as erroneous.

For a vexy full px’esexxtation of the subject of removing cases from the state couxfs into the federal courts, and for a copious citation of authorities, see the Soxxtlxern Law Review, ixew series, vol. 2, p. 282; and vol. 3, p. 3 — the former article by Judge Dillon, the latter by Chancellor Cooper. Judge Dillon’s article, with some additions, has appeared in a separate pamphlet, under the title of “ Removal of Causes fronx State Courts to Federal Courts.” On page 67 of this pamphlet, (note 107,) it is said “ the adverse party is not entitled to notice of the time and place of presenting the petitioix,” citing 8 Blatch., 243, 247. If notice was not required under former acts of congi’ess, neither is it xxnder the act of 1875, (19 United States Statutes at Large, 470,) for the mode of removal is substantially the same, so far as presenting the application to the state coux’t is concerned, under all the acts. Conkling (Treatise 447, n.) thinks notice px-opex-, upon principle, and says it can be required by rules of px-actiee in the state courts. He adds that according to the established practice of the courts of New York, notice must be given of all special motions in causes pending. The language of the act of congress is, that the parity may make and file a petition, and slxall make and file therewith a bond, with good and sufficient surety, and “ it shall then be the duty of the state court to accept said petition and bond, and proceed xxo further in such suit.” There is not a word in the act about waiting for notice to be given. When the petition and bond are made and filed, the matter is ready for the coux't to act upon. If it is in the power of the state, by statute, rules of practice, or otherwise, to make notice a condition precedent, in addition to what the act of congress has prescribed, this state has not done so. Where a statute plainly contemplates an ex parte order, notice is not absolutely a pre-requisite, especially if means are afforded to contest the matter after-wards. 5 Ga., 194. The fifth section of the act we are considering, makes provision for remanding the cause to the state court, if want of jurisdiction should be shown in the federal court. (19 United States Statutes at Large, 472.) There is no occasion for a full hearing in the state court on the sufficiency of the surety. Such questions are constantly acted upon in the absence of the party for whose benefit the surety is taken. This is done in attachments, in claims, appeals, injunctions, and perhaps in many other proceedings. Most generally, too, it is done by a mere ministerial officer. Surely it can be managed by the superior court with as much safety to the absent party as by a sheriff or clerk, or even by a justice of the peace. The superior court should not have refused to entertain the application, nor have postponed action upon it, for want of notice to the defendants. Complainant’s counsel cited 6 Blatch., 362; 47 Ga., 321; 49 Ib., 462.

Judgment reversed.