Francisco v. Manhattan Insurance

By the Court, Sprague, J. : This is an application for a peremptory mandate to the Judge of the Fifth Judicial District Court, Tuolumne County, directing him, as such Judge, to proceed to the trial and determination of the above entitled cause.

The facts material to an understanding of the points involved in this proceeding, as disclosed by petition and answer, are substantially as follows:

On the 8th of January, 1867, the defendant was, and still is, a corporation duly organized under and by virtue of "the laws of the State of New York, and invested with authority [285]to transact a general life insurance business in said State and elsewhere, and then had, and since has continued to have, a place of business in this State, and a duly authorized agent, qualified to act as such, by the laws of this State, within the limits thereof.

On the 5th day of January, 1867, defendant executed a policy of insurance to plaintiff, upon which a liability subsequently accrued, and thereafter, on the 25th of June, 1867, plaintiff commenced, in said Fifth Judicial District Court, an action for the recovery of an amount claimed to be due from defendant on such policy; and thereupon defendant, in due time, entered its appearance in said cause, and at the same time applied by petition to the Court, in due form, for a removal of the cause to the Circuit Court of the United States—tendering the requisite security—alleging as ground of such removal that the plaintiff is a citizen of the State of California, and that defendant, at the date of the commencement of the suit, was and still is a citizen of the State of New York.

After argument of the application for removal upon said petition by the attorneys for the respective parties, the petition was granted by the Court, and upon filing the required bond by defendant, an order was duly made and entered on the 18th November, 1867, removing the cause for trial to the Circuit Court of the United States for the District of California; at the same time the Court made an order staying proceedings under the order of removal for twenty days to allow the plaintiff to prepare an appeal from the same; and, thereafter, on the 4th day of March, 1868, this proceeding was instituted to compel the District Judge to proceed with the trial and determination of the cause, notwithstanding the order of removal.

The ostensible object of this proceeding is to compel the District Court to proceed in the discharge of its duty, to hear and determine plaintiff’s suit, while from the facts disclosed by the application of plaintiff' and the answer of the Judge of the Fifth District, above stated, it is manifest that