Kramer v. Ferry, 27 Ill. App. 479 (1888)

Dec. 18, 1888 · Illinois Appellate Court

27 Ill. App. 479

Emanuel Kramer et al. v. George J. Ferry et al.

Remora! of Causes — Jurisdiction of State Court — Hozo Regained — St at. ute — Failure to File Transcript in Federal Court.

1. A State court loses jurisdiction of a removable cause upon the entry of an order of removal, and can only re-acquire jurisdiction through an order of the Federal court remanding the cause under Sec. 5, Act of March 8, 1875.

2. Failure to file a transcript of the record in the Federal court does not operate to re-in vest the State court with jurisdiction. Hence a certificate of the clerk of the Federal court to such failure, even if a part of the record, does not authorize the State court to proceed with the cause.

[Opinion filed December 18, 1888]

In error to the Superior Court of Cook County; the Hon. Elliott Anthony, Judge, presiding.

The record in this case shows a suit commenced by service of summons, a declaration on a promissory note, an appearance by the plaintiff in error, and, on February 3, 1885, a petition in regular form by said plaintiffs in error for the removal of the case to the United States Circuit Court for the Northern District of Illinois. A bond, as required by the United States Statute, was filed and approved by the Superior Court, and on February 4, 1885, an order was entered transferring the cause to the United States court, and directing that the clerk forthwith transmit to said court a full and complete transcript of all the papers and pleadings in the cause. December 10,1885, there was filed in the Supreme Court a certificate of the clerk of the United States Circuit Court that no transcript of the record from the Superior Court in said cause was filed in said Circuit Court since February 1, 1885; and on the same day, on motion of attorney for the defendants, in the Superior Court, ordered that this canse be, and is hereby, reinstated and redocketed, and that the defendants are required to plead on or before the coming in of court and opening thereof at 10 o’clock Saturday morning next. On December 12,1885, default of the defendants was entered for a failure to comply with the rule to plead, and the court assessed the damages and entered a judgment against them for $2,673, to reverse which the record is brought to this court by writ of error.

Messrs. Moses & Newman, for plaintiffs in error.

No counsel appeared for the defendants in error.

Moran, J.

The petition shows a case coming clearly within the provisions of the act of Congress authorizing the removal of the cause from the State to the United State courts, and all the proceedings for the removal having been formal and regular, the State court, at the time it entered the order of removal, lost all jurisdiction over the case. Even if the court had refused to enter the order, the case being one for removal and the petition and bond sufficient, the State court would be ousted of jurisdiction, and proceeding therein by such court thereafter until the case should be remanded to it in accordance with the statute would be coram non judice and void. Gorden v. Langest, 16 Pet. 97; Stevens v. Phoenix Insurance Co., 41 N. Y. 149; Shaft v. The Phoenix Mutual Ins. Co., 67 N. Y. 54.

The case passed to the jurisdiction of the United States court, and, for anything that appears in this record, there it still remains.

The certificate of the clerk of the United States court can not be considered as part of this record; but if it could be, the matter would be in no manner changed. Failure to file a transcript of the record in the United States court can not reinvest the State court with jurisdiction of the cause. The act of Congress provides for returning certain cases to the jurisdiction of the State courts, as follows:

“When it shall be made to appear to the satisfaction of said Circuit Court at any time after such suit has been removed thereto, that such suit does not really and substantially involve a dispute or controversy properly within the jurisdiction of said Circuit Court, or that the parties to said suit have been improperly or collusively made or joined, either as plaintiffs or defendants, for the purpose of creating a ease cognizable or removable under this act, the said Circuit Court shall proceed no further therein, but shall dismiss or remand it to the court from which it was removed, as justice may require.” Sec. 5, Act of March 3, 1875.

Until there is an order in pursuance of the foregoing section remanding the case, it will, if once properly removed, remain within the jurisdiction of- the United States court. Lawton v. Blitch, 30 Fed. Rep. 641.

The record presented shows that the State court lost jurisdiction of the cause and that it did not regain it, and it follows that, when the judgment was rendered against plaintiffs in error, the Superior Court was wholly without jurisdiction, and the judgment must be reversed.

Jtidgment reversed.