WEST AURORA CITY, 73 U. S. 139 (1867)

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U.S. Supreme Court

West Aurora City, 73 U.S. 6 Wall. 139 139 (1867)

West Aurora City

73 U.S. (6 Wall.) 139


A suit removable from a state court under the twelfth section of the Judiciary Act must be a suit regularly commenced by a citizen of the state in which the suit is brought by process served upon a defendant who is a citizen of another state.

Hence no removal can be made of a defense or answer, though of such a character as that, under statute of the state, it becomes, by a discontinuance of the original suit itself, a proceeding that may go on to trial and judgment as if in some sense an original suit.

The twelfth section of the Judiciary Act provides:

"That if a suit be commenced in any state court against an alien, or by a citizen of the state in which the suit is brought, against a citizen of another state, . . . and the defendant shall, at the time of entering his appearance, file his petition for the removal of the cause for trial in the next circuit court . . . and

Page 73 U. S. 140

offer good and sufficient surety for his entering appearance in such state court, on the first day of its session, and file copies of said process against him, . . . it shall be the duty of the state court to accept the surety and proceed no further in the cause, . . . and such copies being entered as aforesaid in such court of the United States, the cause shall proceed there in the same manner as if it had been brought by original process."

The code of Indiana also provides that in suits brought in that state:

"The defendant may set forth in his answer as many grounds of defense, counterclaim, and setoff, whether legal or equitable, as he shall have. Each shall be distinctly stated in a separate paragraph and numbered, and clearly refer to the cause of action intended to be answered."

With these statutory provisions in existence, West and Torrance, citizens of Ohio, brought suit in one of the state courts of Indiana against the City of Aurora, Indiana. The nature of their action did not clearly appear from the record, but it seemed to have been a suit by petition under the state code against the city just named for the recovery of the amount of the matured interest coupons of certain bonds.

To this suit the defendants seemed to have made defenses by answer under the code, and subsequently to have filed, by leave of the court, as an additional answer, three paragraphs setting up new defensive matter, in each of which the defendant prayed an injunction to restrain the plaintiffs from further proceeding in any suit on the coupons or bonds and from transferring them to any third parties, and for a decree that the bonds be delivered up to be cancelled.

Upon the filing of these additional paragraphs, the plaintiffs entered a discontinuance of their suit and, assuming that under the code the new paragraphs of the answer would remain, in substance, a new suit against them for the cause and object set forth in them, filed their petition for the removal of the cause into the circuit court of the United States. The petition was allowed by the state court, and the new paragraphs, without any other portion of the record

Page 73 U. S. 141

of the suit in that court, except enough to show its title and the entry of discontinuance, were sent into the circuit court. By that court they were remanded to the state court as not constituting a suit that could be removed under the twelfth section of the Judicial Act.

To this action of the circuit court West and Torrance took exceptions, and the case was now here on error, the question being whether the action of the circuit court was right.

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