Suydam v. Smith , 1 Denio 263 ( 1845 )

Per Curiam.

The suit is against three defendants, all of whom join in the petition, and although the capias was served but upon one, an appearance .must be entered for all. We are of opinion that special bail need not be put in in this court, although it is a bailable action. 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. Besides, the section provides that the defendant, in order to effect a removal, shall offer good and sufficient surety for his “ appearing and entering special bail in the cause,” in the circuit court, if special bail was originally requisite therein. The provision recognizes “ appearing” and “ entering special bail,” as separate acts. The section further provides, that when a proper bond has-been given for entering bail in the federal court, “ any bail that may have been originally taken shall be discharged.” It would be idle to exact special bail here, when such bail would be immediately discharged upon perfecting the removal. The bond offered is in due form, and the only question is as to the sufficiency of the sureties. To ascertain this there must be a reference to the clerk. • ' •

By the act of congress the cause is to be removed to the circuit court to be held in the district •“ where the suit is pending.” The suit is in this court, which has jurisdiction throughout the state, and within the same limits there are two circuit courts of the United States. . We might legally send the cause to either circuit, but it may, without any great inconvenience, go to that of the northern district, as desired by the petitioner. The defendant was arrested there, and it is less remote, than the other district from the state of Ohio, where the cause of action arose.

Ordered accordingly.^*

* If there be two defendants in the state court, the cause cannot be removed into the circuit court of the U. S. upon the petition of one of them. (Beardsley v. Torrey, 4 Wash. C. C. R. 286.) So if there be two defendants, and only one of them is a citizen of another state, the cause cannot be removed. (Ibid.) In such cases the circuit court will remand the cause to the slate court. (Ibid.) If a cause is regularly removed from a state court, the plaintiff cannot-oust the circuit court of jurisdiction by releasing a part of his debt so as to bring it below $500. (Wright v. Wells, 1 Pet. 220.) .Where the time has gone by within which a petition to remove a cause from a state court can legally be filed, an agreement to consider it filed as of a preceding term, when it would be in time, does not confer jurisdiction on the circuit court. (Gibson v. Johnson, 1 Pet. C. C. R. 44.) Where special bail is put in in a state court, the defendant cannot, at a subsequent time, present his petition to remove the cause to a circuit court of the U. S. (Redmond v. Russell, 12 John. 153.) But if the petition is filed at the time of putting in special bail, it will be in proper time, though the bail be excepted to. (Arjo v. Monteiro, 1 C. R. 248.) If the landlord of a tenant in ejectment be an alien, and petition to remove the cause at the time he is let in to defend, he is in season. (Jackson v. Stiles, 4 John. 493.) Where the cause of removal is that the defendant is a citizen of another state, that fact must be sworn to positively, and it is not enough to state that he is a resident of such other state. (Corp v. Vermilye, 3 John. 145.)