UNITED STATES SUPREME COURT DECISIONS ON-LINE

Where, upon the removal of a cause from a state court, the copy of the record is not filed within the time fixed by statute, it is within the legal discretion of the federal court to remand the cause, and the order remanding it for that reason should not be disturbed unless it clearly appears that the discretion with which the court is invested has been improperly exercised.

If, upon the first removal, the federal court declines to proceed and remands the cause because of the failure to file the copy of the record within due time, the same party is not entitled, under existing laws, to file in the state court a second petition for removal upon the same ground.

This action was brought in the Court of Common Pleas for the City and County of New York by Samuel McLean, a citizen of that state, against the St. Paul and Chicago Railway Company, a corporation of the State of Minnesota. After answer, the action was, upon the petition of the defendant, accompanied by a proper bond, removed for trial into the Circuit Court of the United States for the Southern District of New York. The sole ground of removal was that the case presented a controversy between the citizens of the different states. The removal was had before the term at which the cause could have been first tried in the state court. The first day of the next session of the federal court succeeding the removal clubjuris

Page 108 U. S. 213

was the 7th day of April, 1879. But the copy of the record from the state court was not filed in the federal court until April 10, 1879, on which day, upon motion of the attorney for the company, an ex parte order was made stating the filing of such copy, the appearance of defendant, and that the action should proceed in that court as if originally commenced therein. Subsequently, April 14, 1879, the plaintiff, upon notice to defendant, moved the court to remand the cause for the failure of the defendant to file copy of the record and enter his appearance within the time prescribed by statute. This motion was resisted upon the ground, supported by affidavit, that it was by inadvertence that the record was not filed in the federal court in proper time, and that counsel did not discover that fact until April 10, 1879, when it was filed, and notice thereof, on the same day, given to plaintiff's attorney. This motion to remand was granted by an order entered May 24, 1879.

On the 28th of May, 1879, the company filed in the state court a second petition, accompanied by the required bond, for the removal of the action into the federal court upon the same grounds as those specified in its first petition. A copy of the record was promptly filed in the federal court, but the cause, upon motion of plaintiff, was again remanded by an order entered December 27, 1879.

The present writ of error brings before this Court both of the orders of the circuit court remanding the cause to the state court. clubjuris

Page 108 U. S. 215