Opinion
10-09-1809
Brown v. Crippin and Wise. [*]
Hay, for the appellant.
Editorial Note:
The Pagination of this documents reflects the pagination of the original published documents. [Syllabus Material] [Syllabus Material]
This was an appeal from a decision of the Superior Court of Law, held for the county of Accomack, on the 6th of May, 1809, refusing to grant a mandamus to the County Court of Accomack, commanding that Court to remove a cause to the Circuit Court of the United States, for the District of Virginia, on the ground stated in the petition of the applicant.
By an act of the General Assembly, which took effect on the first of January, 1809, a Superior Court of Law is to be held by one Judge, in each County, in lieu of, and possessing the jurisdiction of the District Courts, formerly established. --Note in Original Edition.
The case was this: Samuel Crippin and John E. Wise, joint merchants and partners, under the firm of Crippin and Wise, brought an action of trespass against Thomas Brown, for taking and carrying away the good and chattels of the plaintiffs; and laid their damages at ten thousand dollars. On affidavit of one of the partners, that the defendant had taken a schooner of their property, with certain goods on board, and that in the event of a recovery, they would not be able to obtain the effect of their judgment, the defendant not being a resident of this State, a magistrate, by endorsement on the writ, directed bail to be taken, which was accordingly given by the defendant.
The writ was returnable to the February term, (which in that County is a Court of Quarterly Session,) and at the March Court following, (31st of March, 1809,) the defendant, by his attorney, preferred a petition to the Court, in which he stated that he was a lieutenant in the navy of the United States, and a citizen of the State of Pennsylvania; that a writ of trespass de bonis captis et asportatis, had been issued against him, from the office of the Court of Accomack County, by Samuel Crippin and John E. Wise, merchants, (which writ is prayed to be taken as part of the petition,) in which damages were laid at ten thousand dollars, and the petitioner held to bail on the execution thereof, by virtue of an endorsement made by a magistrate, grounded on an affidavit which states the petitioner not to be a resident of this State.
The prayer of the petition was, that the cause might be removed to the next Circuit Court of the United States for the District of Virginia, pursuant to the act of Congress, in that case made and provided; the petitioner further stating, that he was ready, with good and sufficient surety, for his entering in such Court, on the first day of its session, copies of such process against him, and also for his there appearing and entering special bail in the cause, if required.
The County Court refused to permit the removal of the cause, on two grounds; 1st. " Because it was not shewn to them that the defendant was an alien, or a citizen of a State other than the State of Virginia." 2dly. " Because the defendant was not personally present to execute a bond, conformable to the 12th section of the act of Congress, entitled 'An act to establish the Judicial Courts of the United States.'"
The defendant, by his counsel, offered, as proof of the first point, [his being a citizen of another State,] the writ and endorsement thereon, in the cause. He also offered parol proof of the declarations of the defendant, both before and after the issuing of the writ, that he was a native of Philadelphia, in the state of Pennsylvania, and a resident of that city, where his father then resided; and also of like declarations as to the residence of the defendant, from the crew of the gun-boat commanded by him. As to the second point, he tendered certain persons as sureties, acknowledged by the Court to be good and sufficient, but who, the Court said, could not be " taken without the defendant was also present to execute the bond in person."
At the Superior Court of Law, for the County of Accomack, held on the 6th of May, 1809, the defendant moved the Judge of that Court for a mandamus to the County Court of Accomack, commanding that Court to remove the cause to the Circuit Court of the United States, on the above statement of facts appearing in the record. But the Court being of opinion that there was no error in the decision of the County Court, refused to grant the mandamus. From which decision an appeal was taken to this Court.
Hay, for the appellant. 1st. The County Court ought to have allowed the prayer of the petition; the defendant having brought himself within the express terms of the act of Congress. Neither of the reasons assigned by the Court, for their refusal, are sufficient. As to the fact of non-residence, it was established not only by the plaintiff's own affidavit, endorsed on the writ, but was proved by other evidence. The objection that the defendant was not personally in Court to join in the bond, has no weight; for neither the words nor the policy of the act require his presence, and all the purposes of the law may be attained without it; as by a bond executed by others, or by a deed of trust, or a deposit of money, & c. Besides, it might be highly inconvenient to require the presence of the party; because, being a resident of another State, he would be compelled to wait till the meeting of the Court, however distant it might be from the time of serving the writ. But the language of the 12th section of the judicial act of Congress, differs from that formerly used in our statute, which required the party to enter into bond. This law, however, having been found inconvenient, it was provided that bonds for prosecuting appeals, writs of error, supersedeas, certiorari, or any other cause, may be given by any responsible person and security, though not a party.
See L. U.S. vol. 1, p. 56, s. 12.
See 1 Rev. Code, p. 82, s. 58.
2d. This provision for removing a cause from a State Court, where a non-resident is a party, is a wise one, calculated to avoid the effect of those prejudices which too often exist; and which have been manifested by the refusal of the Court, in the present case. It is a privilege, a right, which the law gives, and, in withholding it, the Court erred. The only way in which the error of the County Court could be corrected, was by mandamus. A writ of error or supersedeas would not lie, because they are only grantable after final judgment. Nor would an appeal have been the proper remedy; because it comes within the meaning of the law relating to writs of error and supersedeas. An appeal will only lie from the judgment or sentence of a Court; that is, from that which decides the cause: otherwise, there might be an appeal from a decision on an incidental point; as on a motion for a continuance, or for admitting a deposition to be read. But an appeal, if granted, would not have answered the purpose. Nothing but the record of the motion would have gone up. In the mean time the suit would have progressed, and the cause have been tried. If the Court above had decided, on an appeal, that the County Court did wrong, it could have reversed the opinion of that Court; but could have done nothing more. It might have said that the party was entitled to the privilege of removing his cause, but it would still have remained in the County Court. There was no mode by which the judgment of the Superior Court could be enforced but by mandamus.
1 Rev. Code, p. 82, s. 51.
Ibid. s. 53.
3 Bl. Com. 110.
It has been suggested, that this process should have been applied for to the Federal Court, and not to a State Court, under the 14th section of the judicial act. The Courts of the United States are authorized to issue " all writs not specially provided for by the statute, which may be necessary for the exercise of their respective jurisdictions." But the Circuit Court of the United States had no jurisdiction till the cause was brought before it. When a juridiction has attached in a Federal Court, it may be maintained; but it cannot be acquired in that way. The consequences of such a clashing of jurisdictions between the State and Federal Courts would produce an eternal state of hostility. It never was contemplated that a Federal Court should issue process, commanding a State Court to do any act. It must be presumed, that all the Courts will do their duty, and act within the sphere of their own jurisdictions; and if an inferior Court refuse to exercise its proper functions, it is the duty of a superior Court to compel it. Again, the thirteenth section of the judicial act specially provides for issuing writs of mandamus; but they can only be directed to persons holding office under the United States; and this power is expressly confined to the Supreme Court.
No counsel appeared for the appellees.
Judge Tucker. Judge Roane, concurred. Judge Fleming.
OPINION
TUCKER, JUDGE.
The appellant, a citizen of Pennsylvania, being sued by the appellees in an action of trespass, in the County Court of Accomac, was held to bail in that Court by order of a Justice of that County, founded upon an affidavit made by Crippin, one of the plaintiffs in that suit, stating, that Brown was not a resident of this State, and was about to depart the same. At the succeeding Court, Brown preferred a petition to the Court for the removal of the suit to the next Circuit Court of the United States, to be holden for this district, wherein he styles himself a citizen of Pennsylvania, and refers to the writ and order of bail, and offered to give security as required by the act of the first Congress, 1 sess. c. 20, s. 12, which the Court refused; first, because it was not shewn to them that the defendant was an alien, or a citizen of any other State; and, secondly, because the defendant was not personally present to execute a bond, conformably to the 12th section of the act of Congress. Afterwards, application was made to the Superior Court of Accomac County, to award a mandamus to the County Court, commanding them to remove the cause, which was also refused; and from that decision there is an appeal to this Court.
By the act of Congress above mentioned, if a suit be commenced in any State Court against an alien, or by a citizen of the State in which the suit is brought against a citizen of another State, and the matter in dispute, exclusive of cost, exceeds 500 dollars, and the defendant shall, at the time of entering his appearance, file a petition for the removal of the cause into the next Circuit Court of the United States, to be held in the District, and offer good and sufficient surety for his entering in such Court, on the first day of its session, copies of the process against him, and also for his there appearing and entering bail in the cause, if special bail was originally requisite therein, it shall then be the duty of the State Court to accept the security, and proceed no further in the cause.
The removal of the cause in such a case is a matter of right which ought not to be refused to any defendant, who makes out his case, and complies with the terms of the law. The order for bail endorsed on the writ, obtained on the application and oath of one of the plaintiffs, and stating that the defendant was not a native of this State, superseded the necessity of any proof of that fact to the Court, on the part of the defendant. The security offered was admitted by the Court to be good and sufficient, and ought to have been accepted. The law does not prescribe that a bond shall be taken. A person taken upon a writ of capias ad respondendum may be in close custody; and while the superior Courts of this State had jurisdiction over several, and often very remote Counties, it might have been impossible to bring the defendant before the Court during the term, to give bond in the presence of the Court. In such case, the wise provision of the act of Congress would in ninety-nine cases out of a hundred be defeated. A stipulation in nature of a recognisance taken in Court, (as is every day's practice in entering special bail in the County Courts,) would have answered every purpose of the law. Both reasons for refusing the prayer of the petition were, therefore, utterly without foundation. And the refusal of the mandamus by the superior Court, appears to me to be equally against right. A mandamus is a writ of right in every case where it is the proper remedy. Being of opinion that the County Court refused to perform a duty which was enjoined by law, a mandamus, at that stage of the cause, was the only remedy. The defendant could neither appeal, nor obtain a writ of error, or of supersedeas, until the final decision of the suit, when it might be too late. I do not know that a writ of certiorari would lie from the Circuit Court of the United States to a County Court, to remove a cause under such circumstances. But of this I have no doubt, that neither the Constitution of the United States, nor any act of Congress, does, or can, (so long as the twelfth article of the amendments to the Constitution of the United States remains in force,) deprive the superior Courts of this Common-wealth of that control over the proceedings of the inferior Courts, which the laws of this country give to them. I have therefore no doubt of the right of the Superior Court of Accomac to grant the mandamus, nor that it erred in refusing it. I am therefore of opinion, that the judgment be reversed, and the cause sent back with directions to that Court to award the writ of mandamus.
JUDGE FLEMING said it was the unanimous opinion of the Court, that the judgment of the Superior Court of Law, for Accomac County, be reversed.
" Judgment of the Superior Court of Law, for Accomac County, reversed, with costs; and ordered, that a mandamus be awarded to the Justices of the County Court of Accomac, commanding them to grant the prayer of the appellant's petition for the removal of the suit into the Circuit Court of the United States, held in Richmond, upon his offering good and sufficient surety for his entering in such Court, on the first day of its session, copies of the process against him, and also for his there appearing, and entering special bail in the cause; which surety it is the duty of the said County Court to accept, although the appellant himself may not be personally present."
On the suggestion of Mr. Hay, that the effect of the above judgment might be lost if it were not certified before the rising of the Court, inasmuch as the County Court of Accomac might proceed to the trial of the cause, the clerk was directed to furnish a certificate instanter.
REMOVAL OF CAUSES.
I. From State to Federal Courts.
1. Right to Remove.
a. In General.
b. Because of Diverse Citizenship of Parties.
c. Because of Separable Controversy.
d. Actions to Recover Land Sold for Taxes.
e. Waiver of Right.
2. Proceedings to Remove.
a. Time of Making Application.
b. Petition for Removal.
(1) Requisites and Sufficiency.
(2) Hearing on Petition.
c. Bond for Removal.
3. Review of Order of Removal.
4. Lapse of Time between Removal and Remand.
5. Mandamus to Compel Removal.
II. From One State Court to Another.
1. Constitutionality of Statute Allowing Removal.
2. Necessity for Motion.
3. Removal from County to Circuit Court.
4. Removal from Corporation to Circuit Court.
5. Removal from One Circuit Court to Another.
6. Appeal after Removal.
I. FROM STATE TO FEDERAL COURTS.
1. RIGHT TO REMOVE.
a. In General. --None of the acts of congress providing for the removal of causes from state to federal courts confer any jurisdiction on the federal courts not already possessed by them. In order for a suit brought in a state court to be removable to a federal court under any of these acts the suit must have been such an one as could have been instituted in the federal courts in the first instance upon one or more of the well known grounds of federal jurisdiction. Beery v. Irick, 63 Va. 484, 22 Gratt. 484; Burlew v. Quarrier, 16 W.Va. 108; Baltimore, etc., R. Co. v. Pittsburgh, etc., R. Co., 17 W.Va. 812.
b. Because of Diverse Citizenship of Parties.
In General.--The most important source of federal jurisdiction, and consequently the most fruitful field for litigation involving the removability of causes from state to federal courts, is the act of Congress which provides that the federal courts shall have jurisdiction to try and decide causes " in which there shall be a controversy between citizens of different states." 24 U.S. Stat. at L. 552, c. 373; 25 U.S. Stat. at L. 433, c. 866. Under this act, not only must the requisite diversity of citizenship exist at the time of the institution of the suit, but it must also exist at the time of the filing of the petition for removal. Baltimore, etc., R. Co. v. Pittsburgh, etc., R. Co., 17 W.Va. 812.
What Is Diverse Citizenship of Parties--General Rule.--Under every act of congress for the removal of causes on the sole ground of diverse citizenship, it has uniformly been held that where there is a plurality of plaintiffs or of defendants, every necessary party upon one side of the controversy must be a citizen of a different state from every necessary party upon the other. Guarantee Co. v. First Nat. Bank, 95 Va. 480, 28 S.E. 909; Washington, etc., R. Co. v. Alexandria, etc., R. Co., 19 Gratt. 592; Beery v. Irick, 22 Gratt. 484; Kennedy v. Ehlen, 31 W.Va. 540, 8 S.E. 398; Bell v. Bell, 3 W.Va. 183; George v. Pilcher, 28 Gratt. 299; Williams v. Price, 5 Munf. 507; Burlew v. Quarrier, 16 W.Va. 108. Thus where one of two defendants is a citizen of the same state as the plaintiff, the cause will not be removed, on the ground of diversity of citizenship. Guarantee Co. v. First Nat. Bank, 95 Va. 480, 28 S.E. 909.
" To authorize a removal under the act, as we understand it, all of the petitioning parties must be nonresidents and all of the other parties must be residents of the state in which the suit is brought." Burks, J., in George v. Pilcher, 28 Gratt. 299.
Diversity of Residence Not Sufficient.--Of course diversity of residence does not give a right to have a cause removed from a state court to a federal court, under the statute authorizing a removal on the ground of diversity of citizenship. Guarantee Co. v. First Nat. Bank, 95 Va. 480, 28 S.E. 909.
Suits between Domestic Corporations Not Removable Because Stockholders Are Nonresidents.--Where the plaintiff and defendant are chartered corporations of the state in which the suit is brought, the owners of the corporate stock, though nonresidents, are not entitled to have the cause removed to the federal courts. Washington, etc., R. Co. v. Alexandria, etc., R. Co., 19 Gratt. 592.
Foreign Corporations Are Citizens of Another State.--An affidavit in a cause, filed for the purpose of obtaining a removal of it to a federal court, is within the meaning of the act of congress conferring jurisdiction upon the federal courts in case of diverse citizenship, if it be made on behalf of a " corporation" created by another state, in its corporate name; as the legal presumption is that its members are citizens of the state in which alone the corporate body has a legal existence, and that suit by or against a corporation in its corporate name must be presumed to be a suit by or against citizens of the state which created the corporate body. Rathbone Oil Tract Co. v. Rauch, 5 W.Va. 79.
Privilege of Suing in Federal Courts Cannot Be Abridged by Statute.--The constitutional privilege which a corporation has as a citizen of one state to sue the citizens of another state in the federal courts cannot be taken away by statute declaring it to be a corporation of the latter state. Accordingly it has been held that § 30. ch. 54, Code of W. Va., which provides, in effect, that foreign railroad companies doing business in that state shall be regarded as citizens of that state, and shall not have the right to remove causes to the federal courts, is unconstitutional, and that such a corporation still has the power to remove in a proper case, notwithstanding it has executed and filed an agreement, in pursuance of the statute, that in all suits and proceedings brought against it in the state court it shall be held and treated as a domestic corporation of that state. Rece v. Newport News, etc., Co., 32 W.Va. 164, 9 S.E. 212.
Corporation Doing Business in State Not Necessarily a Citizen Thereof.--A corporation of one state carrying on business in another state does not thereby become a citizen of such other state. Hence a foreign railroad company which leases and operates the property of a railroad company within another state does not become a citizen of that state, so as to lose its right to a removal of the cause when sued in the courts of that state. Baltimore, etc., R. Co. v. Koontz, 14 Otto 5, 104 U.S. 5, 4 Am. & Eng. R. Cas. 105, reversing Baltimore, etc., R. Co. v. Wightman, 29 Gratt. 431; Baltimore, etc., R. Co. v. Noell, 32 Gratt. 394.
Railroad Company with Corporate Existence in Several States.--A railroad company having a corporate existence in the state in which the suit is brought cannot have the suit removed to a federal court merely because it has a corporate existence in another state. Henen v. Baltimore, etc., R. Co., 17 W.Va. 881; Baltimore, etc., R. Co. v. Pittsburgh, etc., R. Co., 17 W.Va. 812.
Foreign Insurance Companies--Virginia Statute.--In an action upon a policy of insurance by a citizen of the state of Virginia against a foreign insurance company doing business in this state the foreign corporation is quoad hoc domiciled in the state by virtue of the statutes authorizing the company to do business here, and is not entitled under the Act of Congress of 1887 to have the cause removed to the United States court on the ground that the corporation is a resident of another state. " These corporations are placed by our statute on precisely the same footing quoad hoc as the home corporations, and when they come into this state and accept the provisions of our statute law, they become domiciled here; and, as to all contracts and obligations made and assumed under the provisions of our laws, they are no longer citizens of another state, but are subject to the laws, to sue and be sued as citizens of this state." Continental Ins. Co. v. Kasey, 27 Gratt. 216.
c. Because of Separable Controversy. --Congress, in 1866, passed an act which provided, in effect, that in cases where the interests of some of the parties, who were citizens of different states, were so entirely separable and distinct that a judgment or decree could be rendered as to them without affecting the other parties to the suit, that the United States courts should have jurisdiction of such separable controversy under certain specified conditions. U.S. Stat. at L. 306, c. 288. In order that a suit may be removed on the ground of a separable controversy therein, under this act, the requisite diversity of citizenship must exist between the parties to the separable controversy itself. George v. Pilcher, 28 Gratt. 299.
d. Actions to Recover Land Sold for Taxes. --Suits at law, brought by the original owners of land against purchasers at a sale for taxes under the act of congress, to recover the land, are not within the act of congress of March 3, 1863, authorizing the removal of certain suits from the state courts to the courts of the United States. Martin v. Snowden, 18 Gratt. 100.
e. Waiver of Right. --Where one who is named as a defendant in an action brought in a state court has a right to have the cause removed to the federal court on the ground that he is a citizen of another state, voluntarily submits himself to the jurisdiction of the state court by appearing and giving bond to satisfy the decree of the court, in case it should be against him, he thereby waives his privilege of removal. The privilege of removal only exists where the defendant is compelled to appear against his will by the mandate of the court. Bell v. Bell, 3 W.Va. 183; Continental Ins. Co. v. Kasey, 27 Gratt. 216; Beery v. Irick, 22 Gratt. 484.
2. PROCEEDINGS TO REMOVE.
a. Time of Making Application.
At Term When Case Is First Ready for Trial. --No case pending in a state court can be removed to a federal court, unless the application to remove it is made to the state court, at or before the term at which it could be first tried, and before the trial. White v. Holt, 20 W.Va. 792; Continental Ins. Co. v. Kasey, 27 Gratt. 216; Bell v. Bell, 3 W.Va. 183. The petition for removal must be filed at the term of the court at which the suit is first ready for hearing and trial, notwithstanding it is a special, and not a regular, term of the court. Kennedy v. Ehlen, 31 W.Va. 540, 8 S.E. 398.
In Circuit Court on Appeal from Justice. --It has been held that a motion to remove a cause to a federal court is made in time if made before the trial in the circuit court, on appeal from a judgment of a justice, since the trial before the justice is not a " final trial" within the meaning of the act of congress which provides that the petition for removal shall be made before the final trial or hearing of the suit. A justice's court is not a " state court" within the meaning of the federal statute and no motion to remove a cause can be made before him. Rathbone Oil Tract Co. v. Rauch, 5 W.Va. 79.
After Opening of Judgment. --And where a judgment against a nonresident defendant, recovered in a suit instituted by publication, is opened, the first term after the opening of the judgment at which the cause can be tried upon the merits is the term at which, within the meaning of the act of congress, he should file his petition for removal. Smith v. Life Asso., 76 Va. 380; Harter v. Kernochan, 103 U.S. 562, 26 L.Ed. 411.
Pending or after an Appeal. --After a decree upon the merits has been made in a suit in a state court, and an appeal has been taken to the court of appeals, and the case is pending in that court, no party has the right to have the cause removed to a federal court. Beery v. Irick, 22 Gratt. 484. And after a trial of an action at law, and a new trial directed by the appellate court, a party is not entitled under the act of congress of 1867, to have the cause removed to the United States court upon the ground that he is a nonresident of the state. Continental Ins. Co. v. Kasey, 27 Gratt. 216.
b. Petition for Removal.
(1) Requisites and Sufficiency.
In General. --The facts set up in the petition should be such, as with what already appears on the record, if true, to show that the suit is removable under the act of congress. If such facts are not alleged in the petition and do not appear in the record, it is the duty of the state court to enquire no farther but to refuse to order the removal of the cause. If such facts are alleged in the petition, as show, that, if true, the suit is removable, such facts may be controverted, and the court will then hear the evidence pro and con and judicially decide upon the evidence and either enter an order removing or refusing to remove the cause to the United States court. White v. Holt, 20 W.Va. 792.
Allegations of Diversity of Citizenship.--A foreign corporation, for the purpose of suit, may become a resident of each state in which it does business under the laws thereof. And, when sued with another in a state court if it presents a petition for removal of the case to a federal court, the petition must show that it is not a resident of the state in which the suit is brought, and must state the residence of its co-defendant. A petition which simply avers that the petitioner is an alien corporation, and that its co-defendant is a resident of another state, but does not state his citizenship, is defective on its face. Guarantee Co. v. National Bank, 95 Va. 480, 28 S.E. 909.
(2) Hearing on Petition. --A state court is not bound to surrender its jurisdiction of the suit on a petition for removal until a case has been made which on its face shows that the petitioner has a right to the transfer, and the state court is at liberty to determine for itself whether on the face of the record, including the petition and bond for removal, it appears that a removal has been effected. Guarantee Co. v. National Bank, 95 Va. 480, 28 S.E. 909; Henen v. Baltimore, etc., R. Co., 17 W.Va. 881; Baltimore, etc., R. Co. v. Pittsburgh, etc., R. Co., 17 W.Va. 812; White v. Holt, 20 W.Va. 792; Removal Cases, 100 U.S. 457, 25 L.Ed. 593. But an adverse determination involves the risk of having all of its subsequent proceedings rendered of no avail, if on appeal it shall ultimately be determined by the United States supreme court that when the petition for removal was filed the state court should have given up its jurisdiction. Baltimore, etc., R. Co. v. Koontz, 14 Otto 5, 104 U.S. 5, 4 Am. & Eng. R. Cas. 105, reversing Baltimore, etc., R. Co. v. Wightman, 29 Gratt. 431; Baltimore, etc., R. Co. v. Noell, 32 Gratt. 394.
c. Bond for Removal.
Defendant Need Not Be Present to Give Bond. --It has been held that on the removal of the cause from the state to the federal court, bond and security, for complying with the requisition of the act of congress, may be given though the defendant is not personally present. Brown v. Crippin, 4 Hen. & M. 173.
Bond Should Be in Proper Form.--Where a petition is filed in a state court praying the removal of a case from such court to a circuit court of the United States under section 639 of the Revised Statutes, the state court ought not to receive the bond offered by the petitioner, unless the condition of the bond so offered contains the material parts prescribed and required by said section in such a case. Henen v. Baltimore, etc., R. Co., 17 W.Va. 881. The bond given by the defendant in a case which is removed to the federal court must provide for his appearance in the cause in the federal court. Bell v. Bell, 3 W.Va. 183.
3. REVIEW OF ORDER OF REMOVAL. --An order of a state court removing a case at law to the circuit court of the United States under section 639, page 114 of the Revised Statutes of the United States, is reviewable by the supreme court of appeals of the state by writ of error, and upon such review said supreme court of appeals may reverse or affirm such order, as justice and the law may require in the opinion of such court. Henen v. Baltimore, etc., R. Co., 17 W.Va. 881; White v. Holt, 20 W.Va. 792. In one case the state court properly refused an application to remove a case to the federal court, the case not being removable, and after such refusal, the petitioner obtained a record of the case, and filed it in the federal court, which docketed the case. The petitioner then took a copy of said order of the federal court and filed it in the state court, and objected to that court proceeding further in the case for the reason, that the case had been docketed in the federal court. The judge of the state court having refused to proceed, the supreme court of appeals of the state issued a mandamus to compel him to proceed with the case. White v. Holt, 20 W.Va. 792.
4. LAPSE OF TIME BETWEEN REMOVAL AND REMAND. --Where a removal is ordered upon the petition of the defendant, and the cause remains in the United States court for seventeen years, during which time active litigation is carried on between the parties, and then the cause is remanded to the state court for want of jurisdiction, the defendant cannot take advantage of the delay thus occasioned to dismiss the plaintiff's cause. Parker v. Clarkson, 39 W.Va. 184, 19 S.E. 431.
5. MANDAMUS TO COMPEL REMOVAL. --Mandamus from a higher state court is the proper remedy to compel a state court to remove a cause to the federal courts, where a proper cause for removal exists. Brown v. Crippin, 4 Hen. & M. 173. See also, Danville v. Blackwell, 80 Va. 38. See monographic note on " Mandamus" appended to Dawson v. Thruston, 2 Hen. & M. 132.
II. FROM ONE STATE COURT TO ANOTHER.
1. CONSTITUTIONALITY OF STATUTE ALLOWING REMOVAL. --The act of March 7th, 1884 (Acts 1883-4, page 424), directing that on motion, on twenty days' notice by any party, any suit or proceeding pending in a corporation court shall be removed, as of right, to the circuit court of said corporation, is not unconstitutional. Town of Danville v. Blackwell, 80 Va. 38.
2. NECESSITY FOR MOTION. --The statutes usually provide that the removal must be on motion of a party; but it has been held that the consent of all parties to the removal of a cause from one court having jurisdiction thereof to another court of like jurisdiction is equivalent to a motion by such parties for such removal, and that the guardian ad litem of infant parties may give such consent for the infants. Lemmon v. Herbert, 92 Va. 653, 24 S.E. 249.
3. REMOVAL FROM COUNTY TO CIRCUIT COURT.
Under Act of 1873.--The act of April 2, 1873, changed the jurisdiction of the county courts, and provided in terms, without requiring any previous notice or motion, for the removal of " all causes at law and in chancery pending in the county court on the first of August 1873," to the circuit court of the several counties. Under this act it was held that a creditor's bill pending in the county court on the first of August, 1873, was properly removed to the circuit court of the county without any previous notice or motion. Merchants Bank v. Campbell, 75 Va. 455.
After Appeal from Justices Court.--Where a circuit court has jurisdiction of an appeal from the decision of a justice, under Code, § 2956, the appeal is direct and original, and cannot come by way of removal from the county court. Valley Turnpike Co. v. Moore, 100 Va. 702, 42 S.E. 675.
In Felony Cases--Under § 4016 of the Code, as amended (Acts 1893-4, p. 270) county courts have exclusive original jurisdiction of all felonies committed within their respective counties, and the prisoner has no right to remove the case to the circuit court. Gilligan v. Com., 99 Va. 816, 37 S.E. 962.
Old Virginia Statute.--It was formerly provided by statute in Virginia (Code 1849, p. 657, § 1) that any civil cause which had been pending in the county court for twelve months might on motion be re moved to the circuit court. But this statute has long since been abolished (Act of 1871-2, p. 336), and the cases decided thereunder, though enumerated below, are believed to be of little practical value. Harrison v. Middleton, 11 Gratt. 527; Kincheloe v. Tracewells, 11 Gratt. 587; Hale v. Burwell, 2 Patton & H. 608; Spengler v. Davy, 15 Gratt. 381; Hogshead v. Baylor. 16 Gratt. 99; Virginia, etc., R. Co. v. Campbell, 22 Gratt. 437; Jelenko v. Coleman, 22 W.Va. 221.
4. REMOVAL FROM CORPORATION TO CIRCUIT COURT. --Mandamus will lie to compel the judge of a corporation court to remove a cause pending in his court to the circuit court for that corporation, according to Acts 1883-4, p. 424, the duty imposed by such statute being absolute, and purely ministerial and there being no other adequate remedy. Town of Danville v. Blackwell, 80 Va. 38.
5. REMOVAL FROM ONE CIRCUIT COURT TO ANOTHER. --Under the Virginia Statute (Code 1860, ch. 174, § 3; Code 1887, § 3316) providing for the removal of causes from one circuit court to another on motion and notice, it has been held that a removal may be made while the cause is at rules to the circuit court of another county in vacation. Muller v. Bayly, 21 Gratt. 521.
6. APPEAL AFTER REMOVAL. --Where a cause has been removed from one court to another under the provisions of § 3318 of the Code, the clerk of the court to which the cause is removed is the only person who can certify the record, and take the bond required in order to perfect an appeal to the supreme court, even though the errors complained of were committed before removal. An appeal allowed upon a record certified by the clerk of the court making the removal order will be dismissed, but without prejudice to the rights of the appellant so far as not affected by the act of limitations. Smith v. Pyrites, etc., Co., 100 Va. 292, 40 S.E. 918.
CONCUR
JUDGE ROANE concurred, as to the judgment agreed to be entered. He said he thought it a very plain case.
[*]For monographic note on " Removal of Causes," see end of case.