Frank and Lucille Ristuccia v. Earl and Bernice Adams

Appellants were state court defendants who successfully counterclaimed in that litigation which was concluded on September 11, 1963, when the Superior Court of the State of California in and for the County of Los Angeles entered judgment for them. Approximately one year later appellants, acting in propria persona, moved to reopen the judgment and modify the award, alleging fraud and collusion by their attorneys and the opposing parties. This motion was denied on October 2, 1964, and appellants appealed. The California District Court of Appeal affirmed and appellants were ordered to pay $200.00 in damages for bringing a frivolous appeal. When petition to the California Supreme Court proved unsuccessful, appellants filed a petition for removal to federal court under 28 U.S.C. §§ 1441 and 1443. The United States District Court for the Central District of California dismissed the petition and appellants challenge that decision in this court.

Any one of several reasons would be sufficient to bar appellants’ removal petition. It would seem obvious that to remove an action to the federal courts from a state court, it must first be pending in the state court. Since appellants’ motion was…