Where a motion was made under the 12th section of the Judiciary
Act, to remove a cause from a state court to the circuit court of
the United States, notwithstanding which the state court retained
cognizance of the case, and it was ultimately brought to this Court
under the 25th section of the Judiciary Act, a motion to dismiss it
for want of jurisdiction cannot be sustained. The question will
remain to be decided upon the full hearing of the case.
A Motion was made by Mr. Martin to dismiss this case, which was
argued by himself and Mr. Garr.
The circumstances upon which the motion was based, are stated in
the opinion of the Court.
MR. CHIEF JUSTICE TANEY delivered the opinion of the Court.
This is a writ of error directed to the Superior Court of the
City of New York, and a motion has been made by the defendant in
error to dismiss it for want of jurisdiction.
The record shows that a suit was brought by the defendant in
error against the plaintiff in the state court above mentioned, the
former being a citizen of New York and the latter a citizen of New
Jersey. The plaintiff in error, at the time of entering his
appearance in the state court, filed his petition stating the
citizenship of the parties and praying for the removal of the cause
for trial into the next circuit court, to be held in the district
where the said suit was pending, and at the same time offered good
and sufficient security for his entering in such court, on the
first day of the session, copies of the process against him, and
also for his then appearing and entering special bail in the
cause.
The state court, however, refused to permit the cause to be
removed, and after the petition was filed and the bond given,
proceeded in the case, and finally gave judgment against the
plaintiff in error for the sum of money mentioned in the record.
Various proceedings, it appears, were afterwards had in the
appellate courts of the state in relation to this judgment, but the
decision in these courts was also against the plaintiff in error,
and the judgment rendered in the Superior Court of the City of New
York still remains there and is in full force if that court had
jurisdiction of the case after the application to remove it.
The case then, as it stands on the motion, is this:
The plaintiff in error claimed the right to remove this cause
from the state court to the circuit court of the United States
under the 12th section of the Judiciary Act of 1789. The right
claimed was denied by the state court, which retained the case and
proceeded to give a final judgment against him.
Page 55 U. S. 24
It is therefore precisely one of the cases enumerated in the
25th section of the act of 1789, in which jurisdiction is conferred
upon this Court and in which the judgment of the state court may be
reviewed upon writ of error. For the construction of an act of
Congress was drawn in question, and the decision of the court was
against the right claimed under it by the plaintiff in error.
As to the authority of the Superior Court of the City of New
York to retain the case, and the validity or invalidity of its
proceedings and judgment, after the motion to remove, that
question, according to the practice of the Court, will stand for
hearing when the case is reached in the regular call of the docket.
But the motion to dismiss for want of jurisdiction in this Court
is
Overruled.
Order
On consideration of the motion, made on a prior day of the
present term of this Court, to dismiss this writ of error, and of
the argument of counsel thereupon had, as well in support of as
against the motion, it is now here ordered by the court that the
said motion be, and the same is hereby, overruled.