ercise his right to take a default does not extend defendant's time for removal.6

1 Spangler v. Atchison etc. R. Co., 42 Fed. Rep. 305.

2 Simonson v. Jordan, 24 [Blatchf. 374; Winberg v. Berkeley etc. L. Co., 29 Fed. Rep. 71. See, however, Pullman P. C. Co. v. Speck, 113 U S. 84.

3 Simonson v. Jordan, supra.

4 Wedekind v. Southern Pac. R. Co., 36 Fe

p. 279.

5 Lockhart v. Memphis & L. R. Co., 38 Fed. Rep. 274. 6 Kansas City etc. R. Co. v. Daughtry, 138 U. S. 298.

5

§ 105 1. Time under the Revised Statutes, section 639.-The petition must be filed at the time of entering an appearance,1 and the appearance must first be entered in the State court.2 This requirement was intended not only to put the defendant to an election of his tribunal, but to give the opposite party early notice of his intention. To entitle a defendant to a removal from the Supreme Court, the applicant must file his petition in the Supreme Court at the time of putting on special bail; giving notice of the petition at the next term, and then filing it, is not sufficient. 4 If a suit is against a citizen of another State, the party must file his petition at the time he enters his appearance. Defendants may apply at different times when their appearances are entered at different times." The application must be made at the time of entering the appearance in the State court, and the right is waived if defendant demurs, pleads, or answers, or otherwise submits to the jurisdiction. The filing of a pleading or agreement by defendant, duly signed by his solicitor, and making an application thereon, is entering an appearance. 8 If petitioner enters into an agreement that the case shall remain on the docket, and thereby obtains a continuance, it shall be deemed an appearance. A landlord appears when he is admitted as a defendant. 10 If a plaintiff has taken no step to obtain a judgment by default, defendant may appear and file his petition for removal. 11 Where the State law does not require a formal appearance, filing a petition for removal is a sufficient appearance. 12 Appearance and entering bail are separate acts.13 So giving an undertaking with sureties on an arrest is not an appearance.1 defendant opposes a motion for an injunction, and files an

If

18

21

answer which is read at the hearing, he cannot remove the suit. 15 Or where he legally and properly assents to the jurisdiction. 16 As where he appears and answers the original bill.17 A service of notice of appearance is not an appearance. Nor is the giving of formal notice of retainer;19 nor a mere agreement between the parties that defendant shall have further time to answer. 20 If defendant obtains an order extending the time to answer, it is equivalent to an appearance. If the court appoints an attorney to represent an absent defendant, his appearance is not appearance by defendant. 22 An appearance in open court, at a special term held out of the district is not an appearance entitling to a removal.23 When the defendants are served at different times, or at different times enter their appearance, they may each at such different times make application. 24 Where some of the defendants removed a cause regularly, others cannot enter an original appearance in such courts. Notice of appearance filed with the clerk at the time of the application to remove is entering an appearance, but mere notice served on the plaintiff is not.26 The State court cannot cause an appearance to be entered nunc pro tunc, so as to entertain a motion for a new trial. 27

25

1 Yulee v. Vose, 94 U. S. 439; Kingsbury v. Kingsbury, 3 Biss. 60; Redmond v. Russell, 12 Johns. 153; Crane v. Reeder, 28 Mich. 527; Webre v. Puroc, 15 La. An. 65; Gibson v. Johnson, Peters C. C.; 44; Davis v. Cook 9 Nev. 134. But see Gelston v. Johnson, 3 N. J. 625.

2 Ward v. Arredondo, 1 Paine, 410; Field v. Lownsdale, Deady, 288. 3 Redmond v. Russell, 12 Johns. 153.

4 Redmond v. Russell, 12 Johns. 153.

5 Sav. Bank of Cincinnati v. Benton, 2 Met. (Ky). 240.

6 Ward v. Arredondo, 1 Paine, 410.

7 West v. Aurora, 6 Wall. 133; Sweeney v. Coffin, 1 Dill. 3.

8 Pugsley v. Freedman's S. & T. Co., 2 Tenn. Ch. 130.

9 Robinson v. Potter, 43 N. H. 188.

10 Jackson v. Stiles, 4 Johns. 493.

11 Carpenter v. New York & N. H. R. Co., 11 How. Pr. 481.

12 Sweeney v. Coffin, 1 Dill. 73; Stoker v. Leavenworth, 4 Martin N. S. 676.

13 Suydam v. Smith, 1 Denio, 263; Redmond v. Russell, 12 Johns. 153.

14 Durand v. Hollins, 3 Duer, 686; Arjo v. Monteiro, 1 Caines, 248; Bird v. Murray, Cole & C. Cas. 63; Dart v. Arms, 19 How. Pr. 429; Hazard v. Durant, 9 R. I. 602.

15 Livingston v. Gibbons, 4 Johns. Ch. 94. See Cooley v. Lawrence, 12 How. Pr. 176; Pugsley v. Freedman's S. & T. Co., 2 Tenn. Ch. 130.

16 Robinson v. Potter, 43 N. H. 188.

17 Richardson v. Packwood, 1 Martin N. S. 290.

18 Chatham Nat. Bank v. Merchants' Nat. Bank, 1 Hun, 702.

19 Disbrow v. Driggs, 8 Abb. Pr. 305, note; Norton v. Hayes, 4 Denio,

245; Field v. Baker, 1 Code Rep. (N. S.) 292.

20 Disbrow v. Driggs, 8 ALb. Pr. 305, note.

21 Ayres v. Western R. Corp., 32 How. Pr. 351; S. C., 48 Barb. 132.

22 Fi k v. Fisk, 4 Martin N. S. 676.

23 Bristol v. Chapman, 34 How. Pr. 140.

24 Shelby v. Hoffman, 7 Ohio St. 453. Citing Ward v. Arredondo, 1 Paine, 370.

25 Ward v. Arredondo, 1 Paine, 410.

26 Field v. Blair, 1 Code Rep. (N. S.) 361. 27 Ward v. Arredondo, 1 Paine, 410. C. C. 44.

1

See Gibson v. Johnson, Peters

§ 105 m. Time under prior statutes.—Under the twelfth 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 "trial" referred to cases at law, and " hearing" to suits in equity. "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; 3 an examination of the facts in issue. Under the Act of 1866 the right is not limited to the time when suit was commenced; and where none of the defendants are citizens of the State where sued, and are served at different times, or at different times enter an appearance, they may at different times respectively make application. So, where a landlord intervenes, his application is in time if made on the day after he becomes defendant, providing the cause had not been previously at issue. If before the pleadings are completed, it is in time. The petition may be made at any time before the trial or hearing; 9 and before final hearing or trial means before final judgment in the court of original jurisdiction. 10 An application under the Acts of 1866 and 1867 must be made before trial or hearing, not

DESTY REMOVALS.-29.

withstanding an amendment of the declaration of which issue was not joined at the time the petition was filed." The action must be actually pending for trial;12 and though it need not be removed at the appearance term, it It cannot must be at the term when it stands for trial.13 be removed after the jury is sworn;14 nor after argument 15 If after hearing the case and submission of the case. A has been referred to a master it cannot be removed. 16 petition for removal cannot be filed after a motion for new trial has been overruled;17 but submission to a jury under the act is not a "final hearing." When there has been a partial disagreement as to the verdict, 18 and if the jury disagree, the case may be removed;19 and if a new trial has been granted the cause may be removed;20 but otherIf the court has wholly wise if it has not been granted. 21 set aside the verdict and granted a new trial, or if the Supreme Court has remanded the cause and granted a trial de novo, it is in the same position as before the first trial or hearing;22 but a right to a second trial must be perfected before a demand for the transfer can be made. 23 A removal is authorized before final judgment, but not after appeal from such judgment; nor can the motion be made in the appellate court pending appeal;25 but it may be removed if only a preliminary question is decided. 26 Where the decree of the court below was reversed, the cause remanded with directions to dismiss the suit, the party has no remedy;27 but where a new trial is ordered, a removal may be had, 28 and there is no need of new pleadings if the case is in a proper shape for trial;29 but after So plaintiff would have the second term it is too late.30 the right to dismiss his suit and commence in the Federal court. Although defendant is entitled to a new trial, yet if the judgment remains in force he cannot remove;32 and so if the appellate court enters judgment instead of remanding the cause. The provision of the United States Revised Statutes, section 639, subd. 3, regarding removals for local prejudice, was not repealed by the Act of 1875, and a removal may be had if the application is made beIt has been hela that an apfore trial or final hearing. 34 plication for a removal made after a trial, is made too late; that the words "before the trial," contained in the United States Revised Statutes, section 639, subd. 3,

33

mean before any trial. 35 But the words of this statute are, "before trial or final hearing," and hence there may be a removal after a decision on a demurrer.36 Or after a reversal by the appellate State court, and pending a new trial. 37 1 McCallon v. Waterman, 1 Flippen, 652.

2 Insurance Co. v. Dunn, 19 Wall. 214; Crane v. Reeder, 23 Mich. 527; Miller v. Finn, 1 Neb. 254; Akerly v. Vilas, 24 Wis. 165.

3 Insurance Co. v. Dunn, 19 Wall. 214.

4 Vannevar v. Bryant, 21 Wall. 41; S. C., 106 Mass. 180.

5 Johnson v. Monell, 1 Woolw. 390; and see Insurance Co. v. Pechner, 95 U. S. 183.

6 Shelby v. Hoffman, 7 Ohio St. 453; Ward v. Arredondo, 1 Paine, 370; Fisk v. Union Pacific R. Co., 8 Blatchf. 248.

7 Greene v. Klinger, 10 Cent. L. J. 47; 11 Fed. Rep. 689.

8 Whitehouse v. Continental Ins. Co., 37 Leg. Int. 225.

9 Vannevar v. Bryant, 21 Wall. 43; S. C., 106 Mass. 180; Cox v. East Tenn. V. & G. R. Co., 62 Ga. 163; Ely v. North P. R. Co., 7 Week. Notes, 145; S. C., 36 Leg. Int. 164.

10 Yulee v. Vose, 99 U. S. 539; Brice v Somers, 1 Flippen, 574.

11 Adams Express Co. v. Trego, 35 Md. 47. See Lewis v. Smythe, 2 Woods, 117.

12 Vannevar v. Bryant, 21 Wall. 41.

13 Cox v. East Tenn. V. & G. R. B. Co., 62 Ga. 163.

14 Adams Express Co. v. Trego, 35 Md. 47.

15 Waggener v. Cheek, 2 Dill. 560.

16 Jifkins v. Sweetser, 13 Ch. L. N. 103.

17 Fasnacht v. Frank, 23 Wall. 416.

18 Osborn v. Osborn, 5 Fed. Rep. 389

19 Hall v. Ricketts, 9 Bush, 366; Burson v. Nat Park Bank, 10 Ind. 173: Clarke v. Delaware & H. Can. Co., 11 R. I. 36. Contra: Galpin v. Critchlow, 112 Mass. 339; Chandler v. Coe, 56 N. H. 184; Continental Ins. Co. v. Kasey, 27 Gratt. 216.

20 Minnett v. M. & St. P. R. Co., 3 Dill. 460; Kellogg v. Hughes, 3 Dill. 357. Contra: Akerly v. Vilas, 21 Wis. 165; Chandler v. Coe, 55 N. H. 184; Continental Ins. Co. v. Kasey, 27 Gratt. 226; Hall v. Rickets, 9 Bush, 366. 21 Vannevar v. Bryant, 21 Wall. 41; Bryant v. Rich, 106 Mass. 180.

22 Stevenson v. Williams, 19 Wall. 572; Vannevar v. Bryant, 21 Wall 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. See also Sims v. Sims, 17 Blatchf. 369; Dart v. McKinney, 9 Blatchf. 359; Johnson v. Monell, 1 Woolw. 390; Barber v. St. Louis etc. R. Co., 43 Iowa, 323; Rathbone Oil Tract Co. v. Rauch, 5 W. Va. 79.

23 Vannevar v. Bryant, 21 Wall. 41.

24 Stevenson v. Williams, 19 Wall. 572; Vannevar v. Bryant, 21 Wall. 41; Waggener v. Cheek, 2 Dill. 560; Kellogg v. Hughes, 3 Dill. 357; Dart v. McKinney, 9 Blatchf. 359; Brice v. Somers, 1 Flippen, 574.

25 Berry v. Irick, 22 Gratt. 487; Williams v. Williams, 24 La. An. 55; Stevenson v. Williams, 19 Wall. 572; Waggener v. Cheek, 2 Dill. 560; Miller v. Finn, 1 Neb. 254; McKinley v. Chicago & N. W. R. Co., 14 Iowa, 314.