North American Loan & Trust Co. v. Colonial & U. S. Mortg. Co.

Citations

• 3 S.D. 590
• 54 N.W. 659
• 1893 S.D. LEXIS 24

Syllabus

<p>1. The act of congress of March 3, 1887, gives to a defendant the absolute right of removal from the state to the federal court, if there exist the required conditions as to diverse citizenship and amount in controversy.</p> <p>2. In an action so removable, the filing of a sufficient petition and bond in the office of the clerk of the court in which such action is pending, with, and as a part of, the records of the ease, is a filing of the same “in-such suit in such state court,” within the meaning of section 3 of said act. Corson, J., dissenting.</p> <p>3. Such petition and bond, so filed within the time prescribed by said section 3, ipso facto arrests the authority of the state court to proceed further in the case. Corson, J., dissenting.</p> <p>4. Actual presentation to the state court, if in session, is a courtesy due to the court, but it is not expressly required by the law; and, where there will be no session of the court to which the petition could be formally presented within the time when the defendant must answer, the claim of courtesy to such court cannot be allowed to defeat the defendant’s right of removal. Corson, J., dissenting.</p> <p>5. In this case the defendant, a nonresident corporation, before its time to answer had expired, filed its petition and bond in the office of the clerk of the court in which the action was pending, as a part of the records of the case, the court not being in session. Afterwards, and with actual knowledge of such facts, no term having yet been held, the plaintiff procured to be entered a judgment against the defendant as upon its default. Ilt-td, that such judgment was rendered by the state court without jurisdiction, and it was error to refuse defendant’s application to set it aside. Corson, J., dissenting.</p> <p>(Syllabus by the Court.</p>