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KERN v. HUIDEKOPER.

October 1, 1880

KERN
v.
HUIDEKOPER.



ERROR to the Circuit Court of the United States for the Northern District of Illinois. The facts are stated in the opinion of the court.

The opinion of the court was delivered by: Mr. Justice Woods delivered the opinion of the court.

Mr. Edwin Walker for the plaintiff in error.

Mr. Henry Crawford, contra.

This was an action of replevin brought by Frederick W. Huidekoper, John N. Dennison, and Thomas W. Shannon, in the Circuit Court of Cook County, Illinois, at its May Term, 1877, to wit, on May 22, 1877, against Charles Kern, to recover the possession of one thousand tons of old railroad iron, which as they claimed he wrongfully detained from them.

The writ of replevin, issued May 23, 1877, was on the same day served by the coroner of the county, who received from the plaintiffs a statutory bond, and delivered to them the possession of the iron. The summons was made returnable at the next term of the court, which began on the third Monday of June.

The declaration, which was filed June 30, alleged that plaintiffs were the owners and lawfully entitled to the possession of certain goods and chattels, to wit, the iron in controversy, which formerly had been in the track of the Chicago, Danville, and Vincennes Railroad, but that it was then lying along the Mud Lake track, near Twenty-fourth Street, in the city of Chicago; that it was of the value of $18,000; that on May 9, 1877, Kern had wrongfully taken possession of it, and still detained the same from them.

Kern, July 6, 1877, pleaded that he was the sheriff of Cook County, and that as such, May 1, 1877, he had levied on and still held the iron, by virtue of two certain executions against the Chicago, Danville, and Vincennes Railroad Company, both issued upon judgments in the Superior Court of Cook County,–one in favor of the Bank of North America, and the other in favor of John McCaffrey, for the aggregate sum of about $11,000; and that at the time of the levy the iron was the property of that company.

On May 31, 1877, the plaintiffs filed in the court their petition to remove said cause to the Circuit Court of the United States for the Northern District of Illinois. The petition alleged that Kern was a citizen of the State of Illinois, and that the plaintiffs at the institution of the action were, and still continued to be, citizens of States other than Illinois; that the amount in controversy in the suit exceeded $500; that there had been no trial of the suit, and the same could not have been tried before the term at which said petition was filed; and that the suit involved a controversy between citizens of different States, which could be wholly determined as between them.

The petition was accompanied by the bond required by the statute of the United States.

On June 2, the court denied the petition for removal, on the ground that it was prematurely presented and filed; that at that date no declaration had been filed, the defendant was not in court, and was not required to appear until the third Monday of June.

On June 30, the petition of the plaintiffs and their bond for the removal of the cause being still on file, and the time for the appearance of the defendant having passed, the plaintiffs filed their declaration, and immediately moved the court for an order transferring the cause, in accordance with their petition, to the Circuit Court of the United States. This motion was denied.

On July 6, the date upon which the defendant filed his plea, and after said plea had been filed, the plaintiffs caused an order to be entered dismissing their petition for the removal of the cause filed May 31, and immediately filed another for the same purpose, containing the same averments, together with a bond, as required by the statute.

This petition was also denied by the State court.

Nevertheless, on July 27, 1877, the plaintiffs filed a transcript of the record of the cause in the clerk's office of the Circuit Court of the United States for the Northern District of Illinois. The term of that court, as prescribed by law, began on the first Monday of that month.

On Nov. 14, 1877, the said term still continuing, that court made an order approving the filing of the said record on July 27 preceding.

On June 5, 1878, the counsel of the plaintiffs moved that court that an order be entered declaring that the cause had been removed from the Circuit Court of Cook County, and that the Circuit Court of the United States had exclusive jurisdiction thereof by reason of such removal, and that the cause be placed on the trial calendar of the court. The court sustained the motion, and directed an order to be made in accordance therewith.

On June 26, 1878, the defendant, by his attorney, entering special appearance for that purpose, filed a written motion in the United States Circuit Court for the dismissal of said action. This motion was overruled.

At the July Term, 1878, of the Circuit Court of Cook County, that court still claiming jurisdiction of the cause, notwithstanding the proceedings for its removal above recited, the plaintiffs filed in that court a replication to the plea of the defendant, in which they alleged that said reilroad iron at the time of the levy was the ...


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