of the state of Florida, holden under and in virtue of the laws and constitution of the state of Florida, here, will or ought to have further cognizance of the plea aforesaid. (Verification.)1 Jeremiah Mason, Attorney for Defendant. c. Setting Up Removal of Cause to Federal Court." (Precedent in Ayres v. Western R. Corp., 45 N. Y. 261.)3 [Supreme Court, New York County. John B. Ayres, plaintiff, The Western Railroad Corporation, defendant. I. (The first answer was to the merits.) Answer. II.] And, for a further and second answer to said complaint, the defendant alleges that the said plaintiff is a citizen of the State of New York, and the said defendant is a citizen of the State of Massachusetts; that on the 5th day of July, 1866, a petition of the defendant, and bond with sufficient surety, for the removal of this action for trial into the Circuit Court of the United States, for the southern district of the State of New York, were filed with the clerk of the city and county of New York, according to the statute of the United States, and the practice in such case made and provided; that notice of the filing of such petition and bond, and that this court would thereafter be moved to grant the prayer of said petition for such removal, on the ground that the plaintiff was a citizen of this State, and the defendant a citizen of the State of Massachusetts, and that the matter in dispute exceeded the sum of $500, was duly served upon the plaintiff's attorney; that the said motion was made at a Special Term of this court, and, on the 13th day of August, 1866, granted, and it was thereby ordered that the said security so offered by the defendant be accepted, and that this court proceed no further in this 1. Consult the title VERIFICATIONS. 2. Loss of jurisdiction by state court by reason of proceedings for a removal of the cause to a federal court may be raised by answer. Shaft v. Phoenix Mut. L. Ins. Co., 67 N. Y. 544. This was an action upon an insurance policy. The defendant set up in his answer, among other things, that the action was commenced by service of summons upon Bull, a person appointed by defendant upon whom process might be served, and who was its general managing agent in the state; that defendant was, at the time of the commencement of the action, a citizen of Connecticut; that the matter in dispute exceeded five hundred dollars; that at the time of entering defendant's appearance a petition was filed for the removal of the cause into the circuit court of the United States and defendant gave the security required in such cases; that notice of a motion that the prayer of the petition be granted was duly served and motion made; that defendant claimed that the supreme court had lost its jurisdiction; and that the cause was removed to the United States circuit court. For forms connected with the removal of causes from state courts to federal court consult the title REMOVAL OF CAUSES. 3. In this case, it was held that the answer was sufficient in form and not demurrable, although omitting to allege that the filing of the petition and bond for removal of the cause to the federal court was at the time of entering defendant's appearance in the state court. Consult, generally, supra, note I, p. 1051. 4. The matter enclosed by [] will not be found in the reported case. cause, and that the same be removed for trial into the Circuit Court of the United States, for the southern district of New York; that upon an appeal from said order to the [General]1 Term of this court, taken by the said plaintiff, the same was reversed, with costs, by the said General Term. And the said defendant, in further answer to the said complaint, alleges that all the proceedings for the removal of said action into the Circuit Court of the United States for the southern district of New York, were in conformity to and in accordance with the statutes of the United States, and the practice in such case made and provided, and that all the provisions of said statutes and practice have been complied with by said defendant, and, as the defendant is informed and believes, this action has been removed for trial into the Circuit Court of the United States for the southern district of New York, where the same is now pending; and that by reason thereof, this court has lost jurisdiction over the same. [Wherefore (continuing and concluding as in Form No. 12440).]2 2. Raised by Motion.3 Form No. 12460. (Commencing as in Form No. 12450, and continuing down to *.) The court has not jurisdiction over the subject-matter of said cause of action, in this, to wit, (stating specifically wherein the court has not jurisdiction).5 (Signature of attorney as in Form No. 12450.) 1. General terms of the supreme court have been abolished, and the jurisdiction formerly exercised by them has been conferred upon the appellate division of the supreme court. N. Y. Const. (1895), art. 6, § 2. 2. The matter supplied and to be supplied in [ ] will not be found in the reported case. 3. Motion to dismiss, in the circuit court, is a proper method of raising the question of jurisdiction as to amount in a case on appeal from a justice who exceeded his jurisdiction. Dillard v. St. Louis, etc., R. Co., 58 Mo. 69. Jurisdiction of circuit court, as to amount in controversy, may be raised by a motion to dismiss. McClure v. Lay, 30 Ala. 208. Want of jurisdiction of the subjectmatter, on appeal from a justice of the peace to the circuit court, may be raised by a motion to dismiss. Butler v. Wagner, 35 Wis. 54. Consult also, generally, supra, note 2, p. 1065. Plea in Abatement, Treated as a Motion to Dismiss.In Ferris v. Ferris, 25 Vt. 100, an action of trespass, in which one Mosher was summoned as trustee, de10 E. of F. P. - 68. fendant pleaded in abatement "that the writ was issued as a writ of attachment in an action of trespass, and not on contract express or implied, as well against the body of the defendant as against his goods, chattels or estate; and that the same was served by attaching the body of the defendant, when, by the law of the land, the plaintiff was not entitled to have such a trustee writ of attachment against the body of the defendant, nor to attach or arrest the body of the defendant on such process,' etc. On demurrer to this plea, the court held it to be unquestionably good as a motion to dismiss, and that, as the question involved the jurisdiction of the court over the subject-matter of the suit, and the ground of objection appearing on the face of the record, the question was properly presented in that form. 4. Based on motion in Bell v. White Lake Lumber Co., 21 Neb. 525, which motion was made before a justice of the peace. Consult, generally, supra, note 2, p. 1065. 1073 5. See supra, note 1, p. 1066. Volume 10. Form No. 12461. (Precedent in Stoughton v. Mott, 13 Vt. 175.)1 [DeClancy Stoughton, Jr., against Danford Mott. Grand Isle County Court, January Term, A. D. 1841.]2 And now the defendant, in his own proper person, comes before the court here, and insists that this court has no jurisdiction of this cause, nor any legal power to hear, try and determine the same, and that original, exclusive jurisdiction of the same, and all legal power and right to hear, try and determine the same, is, by the constitution and laws of the United States, vested in the courts of the said United States, because, he says (setting out the facts showing jurisdiction in the federal court). Whereupon, inasmuch as, by the constitution and laws of the United States, original, exclusive jurisdiction is vested in the courts of the United States to hear, try and determine all questions relating to the (designating briefly the subject-matter of the proceeding), this defendant prays that this honorable court will take no further cognizance of this cause, and that this court order and direct that the cause be dismissed from the docket of this court. 1. In this case the plaintiff insisted that the motion was out of time, as defendant had pleaded the general issue, which admitted the jurisdiction of the court; the county court, however, heard the motion as on demurrer and dismissed the suit for want of jurisdiction. On plaintiff's exceptions to the decision of the county court, the judgment was reversed and the motion to [By his attorney, Jeremiah Mason.]2 dismiss overruled, the court holding that although the motion was not out of time the action could be maintained in the state courts. No objection was raised to the form of the motion. Consult, generally, supra, note 2, p. 1065. 2. The matter enclosed by [ ] will not be found in the reported case. 1074 Volume 10. JUSTIFICATION. Of Sureties, Forms of, see the title JUSTIFICATION OF SURETIES, infra, this page. Pleas of, Forms of, see the titles ASSAULT, vol. 2, p. 228; FALSE IMPRISONMENT, vol. 8, p. 494; LIBEL; MALICIOUS PROSECUTION; SLANDER; and the GENERAL INDEX to this work. JUSTIFICATION OF SURETIES. BY H. G. Connor, Jr. I. NOTICE OF OBJECTIONS TO SURETIES, 1075. 1. In General, 1077. 2. Justifying in Different Amounts, 1100. 1. On Original Obligation, 1102. IV. APPROVAL OF SURETIES JUSTIFYING, 1105. Connecticut. $ 82. 932. Nebraska. 5751. Comp. Stat. (1899), § Nevada. Gen. Stat. (1885), § 3125. 2744. New York. - Code Civ. Proc., §§ 577, 1335. North Carolina. - Code (1883), § 325, 848. North Dakota. - Rev. Codes (1895), S$ 5317, 5335, 5358, 6676. Ohio. 5504. Bates' Anno. Stat. (1897), § Oklahoma. Idaho. Rev. Stat. (1887), § 4275. Michigan. Comp. Laws (1897), $$ 10031,10662 et seq. Minnesota. - Stat. (1894), § 5277. 4061. Stat. (1893), $$ 4038, Oregon. Hill's Anno. Laws (1892), § 116. Pennsylvania. Ct. C. Pl. Rules (1892), No. 37, § 146. Rhode Island. 272, § 4. Gen. Laws (1896), c. Utah. Rev. Stat. (1898), SS 3049, 3051. To Simon Stevenson, Sheriff of Pulaski County, Arkansas: Please take notice, that John Doe, the plaintiff in the above entitled action, objects to the bail given by Richard Roe, the defendant, in the above entitled action, for insufficiency, for the following reasons, to wit, (stating reasons); and that on the ninth day of October, 1899, at ten o'clock in the forenoon, the said John Doe will move his objections to the said bail for such insufficiency before the Pulaski Circuit Court, now in session at its regular October term. Dated this second day of October, 1899. Oliver Ellsworth, Attorney for Plaintiff. Form No. 12463.' Supreme Court, Suffolk County. John Doe, plaintiff and appellant, against Richard Roe, defendant and respondent. Please take notice, that Richard Roe, the respondent in the above entitled action, excepts to the sufficiency of the sureties who executed the undertaking herein and heretofore filed by John Doe, the appellant in the above entitled action, in the office of the county clerk, of Suffolk county, New York, on the second day of October, A. D. 1899, on appeal to the Appellate Division of the Supreme Court from the judgment herein and heretofore rendered and entered in this action in favor of the said Richard Roe, and against the said John Doe. (Signature, date and address as in Form No. 6954.) John Doe against Richard Roe. Form No. 12464.3 (N. Car. Code (1883), § 909, No. 21.) To John Lynch, constable (or sheriff) of the county of Nash. Take notice, that the plaintiff does not accept the bail offered by the defendant in this action.* Yours, etc. John Doe, Plaintiff, (or Oliver Ellsworth, Attorney for Plaintiff). Dated this twenty-fourth day of November, 1896. |