Kramer v. Ferry , 1888 Ill. App. LEXIS 570 ( 1888 )

Moran, J.

The petition shows a case coming clearly within the provisions of the act of Congress authorizing the removal of the cause from the State to the United State courts, and all the proceedings for the removal having been formal and regular, the State court, at the time it entered the order of removal, lost all jurisdiction over the case. Even if the court had refused to enter the order, the case being one for removal and the petition and bond sufficient, the State court would be ousted of jurisdiction, and proceeding therein by such court thereafter until the case should be remanded to it in accordance with the statute would be coram non judice and void. Gorden v. Langest, 16 Pet. 97; Stevens v. Phoenix Insurance Co., 41 N. Y. 149; Shaft v. The Phoenix Mutual Ins. Co., 67 N. Y. 54.

The case passed to the jurisdiction of the United States court, and, for anything that appears in this record, there it still remains.

The certificate of the clerk of the United States court can not be considered as part of this record; but if it could be, the matter would be in no manner changed. Failure to file a transcript of the record in the United States court can not reinvest the State court with jurisdiction of the cause. The act of Congress provides for returning certain cases to the jurisdiction of the State courts, as follows:

“When it shall be made to appear to the satisfaction of said Circuit Court at any time after such suit has been removed thereto, that such suit does not really and substantially involve a dispute or controversy properly within the jurisdiction of said Circuit Court, or that the parties to said suit have been improperly or collusively made or joined, either as plaintiffs or defendants, for the purpose of creating a ease cognizable or removable under this act, the said Circuit Court shall proceed no further therein, but shall dismiss or remand it to the court from which it was removed, as justice may require.” Sec. 5, Act of March 3, 1875.

Until there is an order in pursuance of the foregoing section remanding the case, it will, if once properly removed, remain within the jurisdiction of- the United States court. Lawton v. Blitch, 30 Fed. Rep. 641.

The record presented shows that the State court lost jurisdiction of the cause and that it did not regain it, and it follows that, when the judgment was rendered against plaintiffs in error, the Superior Court was wholly without jurisdiction, and the judgment must be reversed.

Jtidgment reversed.