Pennsylvania Company v. Bender

On motion to dismiss the writ of error. Granted.

Statement by Mr. Justice BREWER: 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 3d 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 24th a motion was made to strike this petition from the files, which on March 27th 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. The Pennsylvania Company. Law. 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 2d 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 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.

L. R. Critchfield, for the motion.

Lucien L. Gilbert and J. R. Carey, opposed.

Mr. Justice BREWER, after stating the facts in the foregoing language, delivered the opinion of the court.