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PENNSYLVANIA CO. V. BENDER, 148 U. S. 255 (1893)

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U.S. Supreme Court

Pennsylvania Co. v. Bender, 148 U.S. 255 (1893)

Pennsylvania Co. v. Bender

No. 1142

Submitted March 6, 1893

Decided March 20, 1893

148 U.S. 255


Under the Act of March 3, 1887, 24 Stat. c. 373, § 2, pp. 552, 553, a finding by the circuit court of the United States, on an application for the removal of a cause from a state court, that the application is sufficient and such as entitles the defendant to remove the cause to a federal court does not, of itself, work such removal, but an order of the court to that effect, equivalent to a judgment, must he made.

When a manifestly defective petition for the removal of a cause from a state court to a federal court is filed in the trial court of the state, and that court denies it and proceeds to trial and judgment on the merits, and the cause is taken in error to an appellate court of the state, where the judgment below is affirmed, no federal question arises.

Kanouse v. Martin, 15 How. 198, distinguished. chanroblesvirtualawlibrary

Page 148 U. S. 256

On September 12, 1887, the defendant in error filed his petition in the Court of Common Pleas of Holmes County, Ohio, to recover from the defendant, the Pennsylvania Company, the sum of $10,000. On October 3, the defendant answered. On March 2, 1888, it filed a petition for removal to the United States Circuit Court for the Northern District of Ohio. On March 24, a motion was made to strike this petition from the files, which on March 27 was sustained. At the May term, 1888, a trial was had, both parties appearing. A verdict was returned by the jury for $6,000, upon which judgment was duly entered. Thereafter a petition in error was filed in the Circuit Court of Holmes County to reverse such judgment. To this petition in error were attached two transcripts, one of the record in the court of common pleas and the other of a certain journal entry of the Circuit Court of the United States for the Northern District of Ohio. This journal entry was as follows:

"George S. Bender, Administrator)"

"vs. ) Law"

"The Pennsylvania Company )"

"Tuesday, March 6, 1888"

"This day came on to be heard the petition of the defendant for an order for the removal of this case from the Court of Common Pleas of Holmes County, Ohio, and, it appearing to the court that the defendant has filed in this court its petition, bond, and affidavit under the second section of the Act of Congress of March 3, 1887, entitled"

"An act to determine the jurisdiction of circuit courts of the United States and to regulate the removal of causes from state courts, and for other purposes,"

"&c., from which it appears to the court that said affidavit is in compliance with said 2d section of said act of Congress, and that said bond is sufficient and satisfactory, and that said defendant, by its petition, affidavit, and bond has shown that it is entitled to remove cause to this Court."

In that court, a motion was made to strike the petition in error from the files, which motion was sustained. Thereupon the defendant filed its petition in error in the supreme chanroblesvirtualawlibrary

Page 148 U. S. 257

court of the state to reverse this ruling. On May 17, 1892, that court sustained the ruling of the circuit court and affirmed the judgment, to reverse which judgment of affirmance plaintiff in error sued out a writ of error from this Court. The case is now submitted on a motion to dismiss.

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