Page:Federal Reporter, 1st Series, Volume 8.djvu/681

WOOLRIDGE V. m'kBNNA. 667 �and notes. In McLean v. Raih-oad Co. 17 Blatcllf. 363, it was held, notwithstanding this decision of the supreme court, that the neglect 6f an attorney, like that in this case, was not an accident or inadvert- ence within the ruling, and that after a failure to file the transcript there could be no subsequent removal. This is in itself an important consideration, because, in the analogous cases of a writ of error to the supreme court already considered, the court seems to justify its refusai to take the case somewhat on the ground that, until barred by gtatute of limitation, a second writ may be sued. In that case the transcript was filed three days after it should have been, and it was held to be essential that it should be filed on the very first day, to give the court jurisdiction, and that the enumeration of causes for which a case should be remanded, as contained in the fifth section of this act of congress, does not exclude the power of the court to remand for other causes. McLean v. Railroad Co. 16 Blatchf. 309. In Broadnax v. Eisner, 13 Blatchf. 366, it was held to be laches not to file the tran- script on the first day unless it were shown to be impossible to procure it. In Bright v. Railroad Co. 14 Blatchf. 214, the transcript was filed on the first day of the term next succeeding that at which it should have been filed, and it was held that only a strict compliaiice would give the court jurisdiction. In Clippinger v. Ins. Co. 8 Chi. Leg. News, 155 ; S. C. 22 Int. Eev. Eec. 47, although the removal was obstructed by the state court refusing it, which action was afterwards reversed, and immediately thereafter the transcript was filed, it was held too late. To same effect is Cobb v. Ins. Co. 3 Hughes, 452. On the other hand, in McBratney v. Vsher, 1 Dill. 367, and Hyde v. Ins. Co. 2 Dill. 625, it was held that if the removing party fails to file the transcript the adverse party may do so ; and in one case, where the removing party had only filed a copy of the summons, when he should have filed a complete transcript, the court gave him further time. If the rigid rule of the above case, holding the time of filing an essential element of the jurisdiction, had been adopted, these cases could not have been BO decided. In Jackson v. Iris. Co. 3 Woods, 413, the transcript was filed 14 days after the first, and it was held not to be fatal to the jurisdiction, although no excuse seems to have been offered for the failure. So, in Kidder v. Featteau, supra; S. C. 1 McC. 323, where the delay was 43 days, and no excuse was offered, the jurisdiction was maintained. There seems to be the recognition of a general princi- ple that where a cause has been removed and falls within the act of congress, it will not be remanded for irregularities which can be rem- edied and have worked no injury to the adverse party. Dennis v. ��� �