§ 98 b.-Petition for removal under prejudice or local influence act.-Under the Act of March 3, 1887, providing for the removal of causes on the ground of local prejudice, a petition for the removal, accompanied by the affidavit of a person authorized to make it, stating of his own knowledge the existence of prejudice and local influence, is sufficient to justify an order of removal.1 It is sufficient, although there is no statement as to what affiant had " 'reason to believe and does believe."2 But it is insufficient where it fails to allege prejudice against the arty seeking removal, or influence exerted by the adverse party, and the affidavit accompanying it fails to state the facts supporting such averments. 3 Defects in a petition and affidavit for removal on the ground of local prejudice, by reason of making the application to the state court instead of the circuit court, and in failing to present sufficient reason for believing that justice cannot be obtained in the state court, are not waived by continuing the case one term in the circuit court, as that court cannot take jurisdiction by consent of parties.*

1 Cooper v. Richmond etc. R. Co., 42 Fed. Rep. 697; Brodhead v. Shoemaker (Ga.), 44 Fed. Rep. 518.

2 Whelan v. New York etc. R. Co. (Ohio), 35 Fed. Rep. 849.

3 Goldworthy v. Chicago M. & St. P. R. Co., 33 Fed. Rep. 769. 4 Southworth v. Reid, 36 Fed. Rep. 451.

98 c. Where petitioner is a corporation.— When the petitioner is a corporation, the petition may be signed and the affidavit be made by some person authorized to represent the corporation. But the authority of any person assuming to represent it must appear.1 It would seem that the president or other principal officer of a corporation may make the affidavit; 2 but not the superintendent of a railroad company, where the representation of the company in judicial proceedings is not within the scope of his official duties. Under the Act of March 3, 1887, a New York corporation, made a co-defendant with three Ohio corporations in a suit by a citizen of Ohio in that State, to enforce a joint liability imposed by State statute for personal injuries, may have the cause removed to the Federal court for local prejudice. A corporation formed under Ohio laws by consolidation of Ohio and Indiana corporations is, nevertheless, an Indiana corporation

4

for the purposes of a suit in Indiana, and cannot remove the cause to a Federal court for local prejudice on the ground that it is not a citizen of the State. A statute requiring a foreign corporation to stipulate against removing any case against it from a State court into a Federal court, on the ground of local prejudice or non-residency, as a condition of a permit to do business within the State, is void. 6

1 Mahone v. Manchester & L. R. Corp., 111 Mass. 75; Duff v. Duff, 31 Fed. Rep. 772.

2 Minnett v. Milwaukee & St. P. R. Co., 3 Dill, 460; Home L. Ins. Co. ▼. Dunn, 86 U. S. 214.

3 Mahone v. Manchester & L. R. Corp., 111 Mass. 72.

4 Whelan v. New York etc. R. Co. (Ohio), 35 Fed. Rep. 849.

5 Paul v. Baltimore, O. & C. R. Co., 44 Fed. Rep. 513.

6 Texas Land & Mortg. Co. v. Worsham, 76 Tex. 556.

§ 98 d. Application, when to be made, under the Act of 1887.-Under the Act of 1887, requiring petitions for removal on the ground of prejudice or local influence to be brought "before the trial," the hearing and determination of a demurrer is a "trial" within the meaning of the act. The statute is imperative that the application must be made at or before the time when the plea therein is due; and the time for removal cannot be extended because plaintiff does not take advantage of his right to take judgment by default. 2 The presenting of a petition for the removal of a cause on account of prejudice or local influence, under the Act of 1887 as amended in 1888, authorizing it "at any time before the trial," is too late after a trial has once been entered upon, although for any reason it did not become a final trial. The word "hearing means an examination of facts in issue.1 "Trial" and final hearing" are distinct terms; "trial' applies to common-law cases, and "hearing" to suits in equity. By "trial or final hearing" is meant a trial or hearing on the merits. A petition, on the groundof prejudice or local influence, is filed in time if filed before the final hearing of the case. The Act of 1867 permitted the removal to be made "at any time before the trial or final hearing of the suit," while the Act of 1887 limits it to 'any time before the trial thereof. "8 A suit pending in a State court may, upon proper showing, be removed to a

66

Federal court at any time before trial in the State court, notwithstanding there has already been one trial.9

1 Lookout Mountain R. Co. v. Houston, 32 Fed. Rep. 711. Contra: Whelan v. New York etc. R. Co. (Ohio), 35 Fed. Rep. 849.

2 Kansas City, Ft. S. & M. R. Co. v. Daughtry, 138 U. S. 298.

3 Davis v. Chicago & N. W. R. Co., 46 Fed. Rep. 307.

4 Vannevar v. Bryant, 88 U. S. 41; Bryani v. Rich, 106 Mass. 180.

5 Home L. Ins. Co. v. Dunn, 86 U. S. 214; Crane v. Reeder, 28 Mich. 527; Miller v. Finn, 1 Neb. 254; Akerly v. Vilas, 24 Wis. 165.

6 Home L. Ins. Co. v. Dunn, 86 U. S. 214.

7 Schraeder Min. & Mfg. Co. v. Packer, 129 U. S. 688.

8 Fisk v. Henarie, 35 Fed. Rep. 232.

9 Brodhead v. Shoemaker (Ga.), 44 Fed. Rep. 518.

§ 98 e. Time to make application under the Judiciary Acts.-Under the 12th section of the Judiciary Act defendant was compelled to file his petition at the time of entering his appearance; and by the Act of 1866 the time was enlarged, and he was allowed to file at any time before the trial or final hearing; and, by the Act of 1867, the words "trial or final hearing" were changed to "final hearing or trial;" and the Act of 1875 omits the words "final hearing," and uses simply the word "trial." Under the Act of 1867 the word 66 "trial" referred to cases at law and "hearing" to suits in equity.1 The provisions of the Act of 1867, embodied in Revised Statutes, section 639, clause 3, which authorizes removals on the ground of prejudice and local influence at any time before the trial or final hearing of the suit, is not repealed by the Act of 1875. It furnishes its own cause for removal, and prescribes its reasons, one of which is that the prejudice may not exist at the beginning, or the hostile local influence may not become known or developed at an earlier stage of the proceedings.2 The petition for removal into the circuit court filed before the final hearing of the case is filed in time. The suit may be removed at any time before final trial in the State court, notwithstanding there has been one trial in the State court. * Under the Acts of 1866 and 1867 it must be made before trial or hearing, notwithstanding an amendment of the declaration on which issue was not joined at the time the petition was filed." The report of the commissioners to whom a claim has been referred by a probate court, under

the statutes of Michigan, is not a final hearing within the meaning of that section. A petition for removal is filed in time if filed after the cause has been heard on demurrer, before the final hearing of the case. It is sufficient if the petition is filed before the final trial or hearing thereof; and this may be long after the time at which the suit could first be tried-as, where prejudice or local influence is developed after a mistrial or a new trial granted. An appeal from the decision of county commissioners in passing upon claims against a county; hence the trial in the circuit court of the county is "the trial" of the case, before which at any time it may be removed into the circuit court of the United States, under United States Revised Statutes, section 639, clause 3.9 A petition for removal, upon the ground of prejudice and local influence, filed while the case was pending, after a new trial had been granted, is in time. 10 It is in the same position as before the first trial or hearing. 11 After one trial, the right to a second must be perfected before the transfer can be made. The action must at the time of the application be actually pending for trial. 12 A petition filed, while the case was pending, after a new trial had been granted, was in time. 13 But it is otherwise if a new trial has not been

After

granted. 14 So it cannot be removed while a motion for a new trial is pending. 15 Nor can it be removed after the calling of a second trial, and after counsel has moved to dismiss the case on the ground that the process attached to the declaration is insufficient, as the final trial of the case has then begun.16 The Act of March 2, 1867, authorizes the removal only where an application is made before final judgment in the court of original jurisdiction where the suit is brought.17 a trial by jury in the State court, if the judgment thereon is vacated, and a new trial granted, the cause may be removed, the judgment, having been vacated, is not final within the meaning of the act." 18 When there has been a partial disagreement as to the verdict, and if the jury disagree, the case may be removed. 19 But a subsequent rehearing in the State court and modification of judgment will operate as a revocation of the order for a new trial, and take the case cut from under the petition for removal. 20 Where the supreme court of

a State reversed the decree of the court below, and made a decree on the merits, and, through the court below, sent the case to a master to settle the details of the final decree, it is too late to file a petition for removal, under the Act of 1867, on the ground of prejudice or local influence.21 A removal is authorized before final judgment, but not after appeal from such judgment. 22 Nor can the motion be made in the appellate court pending appeal.23 And so if the appellate court enters judgment instead of remanding the cause. 24 But it may be removed if only a preliminary question is decided. 25

1 McCallon v. Waterman, 1 Flippen, 652.

2 Hess v. Reynolds, 113 U. S. 73; Baltimore & O. R. Co. v. Bates, 119 U. S. 464.

3 Hess v. Reynolds, 113 U. S. 73; Schraeder Mining & Mfg. Co. v. Packer, 129 U. S. 688; Fisk v. Henarie, 32 Fed. Rep. 417; Whelan v. New York etc. R. Co. (Ohio), 35 Fed. Rep. 849; Haskins v. Cincinnati etc. R. Co. (Tenn.), 37 Fed. Rep. 504.

4 Brodhead v. Shoemaker, 44 Fed, Rep. 518.

5 Vannevar v. Bryant, 88 U. S. 41.

6 Hess v. Reynolds, 113 U. S. 73.

7 Schraeder Min. & Mfg. Co. v. Packer, 129 U. S. 688; Malone v. Richmond & D. R. Co., 35 Fed. Rep. 625; Whelan v. New York etc. R. Co. (Ohio), 35 Fed. Rep. 849.

8 Lookout Mountain R. Co. v. Houston, 32 Fed. Rep. 711; Neale v. Foster, 31 Fed. Rep. 53.

9 Delaware County v. Diebold Safe & L. Co., 133 U. S. 473.

10 Baltimore etc. R. Co. v. Bates, 119 U. S. 464.

11 Stevenson v. Wilson, 86 U. S. 572; Vannevar v. Bryant, 88 T. S. 41; Waggener v. Cheek, 2 Dill. 560; Kellogg v. Hughes, 3 Dill. 357; Minnett v. Milwaukee & St. P. R. Co., 3 Dill. 460, denying Galpin v. Critchlow 112 Mass. 339. Sec also Sims v. Sims, 17 Blatchf. 369; Dart v. McKinney, 9 Blatchf. 359; Johnson v. Monell, 1 Woolw. 390; Barber v. St. Louis, K. C. & N. W. R. Co., 43 Iowa, 223; Rathbone Oil Tract Co. v. Ranch, 5 W. Va. 79.

12 Vannevar v. Bryant, 88 U. S. 41; Chicago & Northwestern R. Co. v. McKinley, 98 U. S. 147.

13 Baltimore & O. R. Co. v. Bates, 119 U. S. 464; Minnett v. Milwaukee & St. P. R. Co., 6 Dill. 439; Kellogg v. Hughes, 3 Dill. 357; Hoadley v. San Francisco, 3 Sawy. 553; Dart v. McKinney, 9 Blatchf. 359; Knowlton v. Congress & E. Spring Co., 13 Blatchf. 170; Dart v. Walker, 43 How. Pr. 29. Contra: Crane v. Reeder, 28 Mich. 527: Akerly v. Vilas, 24 Wis. 165; Chandler v. Coe, 56 N. H. 181; Continental Ins. Co. v. Kasey, 27 Gratt. 216; Hall v. Ricketts, 9 Bush. 366.

14 Vannevar v. Bryant, 88 U. S. 41; Bryant v. Rich, 106 Mass. 180. 15 Home L. Ins Co. v. Dunn, 86 U. S. 214; Vannevar v. Bryant, 88 U. S. 41; Speer, Rem. Causes, 25.

16 Fleming v. Philadelphia F. Assoc., 76 Ga. 678.

17 Stevenson v. Williams, 85 U. S. 572

DESTY REMOVALS.-25.