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But see Douglas v. Caldwell, 65 N. C. 243. Contra: Sneed v. Brownlow, 4 Cold. 233. 26 Douglas v. Caldwell, 65 N. C. 248. 27 Boggs v. Willard, 3 Biss. 256; S. C. 70 Ill. 315. 28 Hoadley v. San Francisco, 3 Sawy. 553; Dart v. McKinney, 9 Blatchf. 359; Knowlton v. Congress & Empire S. Co. ,13 Llatchf. 170; Dart v. Walker, 43 How. Pr. 29. Contra: Crane v. Reeder, 28 Mich. 527. 29 Dart v. McKinney, 9 Blatchf. 359. 30 Gibson v. Johnson, 1 Peters C. C. 44. 31 Hazard v. Chicago, B. & P. R. Co., 4 Biss. 453. 32 Whittier v. Hartford F. Ins. Co., 55 N. H. 141. 33 Jiffkins v. Sweetser, 13 Ch. L. N. 103. 34 Hess v. Reynolds, 113 U. S. 73; Melendy v. Currier, 22 Fed. Rep. 129; Sutherland v. Jersey City & B. R. Co.. 22 Fed. Rep. 356. 35 Jones v. Foster, 61 Wis. 25. 36 Field v. Williams, 24 Fed. Rep. 513.
37 Melendy v. Currier, 22 Fed. Rep. 129; Sutherland v. Jersey City & B. R. Co., 22 Fed. Rep. 356.
§ 105 n. Time under Act of 1875.-By the provision of this section, a cause pending when the act was passed may be removed “at or before the first term at which said cause could be first tried,” after the passage of the act;1 but if a trial had been had after the passage of the act, it cannot be made, although the verdict had been set aside, and a new trial granted. The authority last cited distinguishes the Act of 1867, which says, “at any time before the first hearing or trial;" the Act of 1875 saying, “ before or at the term in which a trial could be had." The words of the act, “ then pending,” mean the first trial after the right of removal attaches, subsequently to the passage of the act;3 and the application is in time if made at the first term of the court thereafter. 4 A case pending in the State Supreme Court at the time of the passage of the act, and which was remanded for further proceedings, stands like a new cause, and the right of removal may be claimed at or before the term at which it can be tried.5 Causes which might have been tried before but were not, and which were pending for trial when the act went into operation, as well as causes once tried but in which a new trial had been ordered, and which were pending ready for trial when the act took effect, are removable if the application therefor be made within the time required in the act;6 but where a cause was pending when the Act of 1875 was passed, and was tried in 1878,
and afterward, on appeal, a new trial was granted, a petition for removal thereafter was pot in time. The transfer of a cause from the State to a Federal court does not vacate what has been done in the State court previous to removal; what has been decided in the State court is res adjudicata, and cannot be reviewed.3
1 Andrews v. Garrett, 1 Flippen, 445.
4 Removal Cases, 100 U. S. 457; Baker v. Peterson, 4 Dill. 562; Hoadley v. San Francisco, 3 Sawy. 553; Andrews v. Garrett, 2 Cent. L. J. 797; M. & M. Nat. Bank v. Wheeler, 13 Blatchf. 218; Crane v. Reeder, 15 Alb. L. J. 103.
5 Pettilon v. Noble, 7 Biss. 449.
6 Crane v. Reeder, 15 Alb. L. J. 103; U. S. Circuit Court, denying S. C. 28 Mich, 527; Andrews v. Garrett, 3 Cent. L. J. 797; S. C., Ch. L. N. 192; Mer. & Manuf. Bank v. Wheeler, 3 Cent, L. J. 13; Hoadley v. San Francisco, 8 Ch. L. N. 134. See Sims v. Sims, 17 Blatchf. 369; Ames v. Colo. Cent. R. Co., 4 Dill. 251; S. C. 4 Cent. L. J. 199.
7 Newdecker v. Rosenbaum, 11 The Reporter, 254. 8 King v. Worthington, 25 Alb. L. J. 15.
$ 105 o. At or before the first term.- The Act of 1875 requires the petition to be made and filed at the first term at which the cause could be tried on its merits, and before the trial thereof; even if the cause could not be reached for triaj. The first term at which the case can be tried is the term at which there is an issue for trial;* and after the expiration of such term an application is too late. The term, “at which a cause could be first tried,” means when the issues are first made up; that is, the term at which either party may demand a trial.6 It is not necessary
that it should be at the first term that it could be put at issue, but at any time before pleadings are completed, or at the first term following. It is the evident intention of the Act of March 3, 1875, sec. 3, that if, under the local law and practice, a case have been tried at a stated term, a removal cannot be had after the lapse of that term. 8 So if the case was at issue and could have been tried, but was continued over the term by consent of parties, it is then too late, unless the State law did not require it to be tried at the appearance term. 10 But the entry of appearance must be general and unconditional, 1 at or before the team at which, by the law of the State and rules of practice, the cause should first regularly stand
for trial;12 and the time cannot be extended by the circuit court, where, in point of fact, the issues are not made up at the first term.13 The code of Iowa, which provides that law actions "shall be tried at the first term after legal and timely service has been made,” limits the time for application for removal of law actions;l4 while equity suits may be removed to the circuit court at the second term, at least where there is no rule of court requiring such suits to be tried at the appearance term. 15 In an equity cause the limitation is to the first term at which the cause can, on due notice, be regularly set down for hearing, and before its hearing;16 and under the code this includes foreclosures of mortgages. 17 A chancery case cannot be tried till the issues are made up, and if there is no delay on the part of the applicant, the application is in time if made before the lapse of the term at which it could have been tried.18 It is not necessarily the first term of the court wherein the action is entered, but the term when, after pleadings are made up, it could be first tried 'under the rules of practice. 19 The application is seasonable if made at the trial term next after the term at which the cause is at issue if it be the term at which it could first be tried. 20 Where terms of court were held every month, and a rule of court provided that at any time within ten days of the commencement of a term the case might be placed on the calendar, an application made the second month after the case was placed on the calendar is too late. 21 If the term at which the cause could be first tried is one which occurs during the time a trial is stayed by order of the court, it is not such a term as is meant by the statute. 2 A party who proceeds to trial without applying for a transfer cannot remove at a subsequent term, although a new trial may have been granted. It is otherwise under the Acts of 1866, 367.23 It must affirmatively appear on the record, or by facto in the petition, that the case could not have been heard and tried at a term before the application was made.24 When one of several defendants in a suit in a joint cause of action in a State court loses his right to remove the action into a circuit court of the United States by failing to make the application in time, the right is lost as to all. 25 In the provision of California constitution of 1879, as to the
sitting of courts, "session" means “term,” as used in the United States law of 1875, regulating removal of causes. 26 The term at which the issues are first made up is the term before, or at which, the petition for removal must be filed. 21
Petition is filed in time if at next term before trial, though but for extensions of time issue might have been joined at a previous term.28 Inasmuch as a cause cannot be tried until the issues are made up, an application for removal from the State to the Federal court is made in time if made before the pleadings are completed, or at the next term following the completion;29 and a petition filed before trial at a terın of the superior court subsequent to that at which the case was entered and at issue, was too late. 30
Where by reason of his membership in a commercial partnership, A. becomes a party to a suit against it by service of process on another member, service on A. afterward does not enable him to remove the suit to the Federal court after the time when it should have been removed.31 A delay of four terms before application for removal to the Federal court has been held fatal. 32 So it is held that a petition to remove a cause to the Federal court, filed at the fifth term, the pleadings being complete at the second term, is not filed at the term when the cause can first be tried. 33 The Act of March 3, 1875, requires a petition for the removal of a cause from a State to a Federal court to be filed before final trial;34 although there may have been any number of mistrials, 35 the right is not barred until the case is actually on trial, all the parties acting in good
After verdict subject to the decision of the court on questions of law presented by demurrer it is too late. 37 In Illinois on reversal in the supreme court, and remand of the cause upon filing the transcript, it stands for rehearing and may be removed.38 The trial of an issue raised by a demurrer which involves the merits of the action is a trial of the action, within the meaning of the Act of 1875.39 A petition for removal on the ground of citizenship, filed after a demurrer has been heard and sustained, is too late. 40 But where the rules of procedure in equity of a State provide that a demurrer shall be disposed of at the first term, the hearing of a demurrer to a bill and an order overruling it is not such a final hearing of the cause as will defeat a removal. 41
1 Americau Bible Society v. Grove, 101 U. S. 610; Ames v. Colorado Cent. R. Co., 4 Dill. 260; McLean v. Chicago & St. P. R. Co., 16 Blatchf. 319; Fulton v. Golden, 20 Alb. Law J. 229; Murray v. Holden, 2 Fed. Rep. 710; Huddy v. Havens, 5 Cent. L. J. 60; Tayler v. Rockefeller, 7 Cent Law J. 319; Danville Banking & T. Co. v. Parks, E8 Ill. 170; knowlton v. Congress & E. Spring Co, 13 Blatchf, 170; N. Y. W. & S. Co. v. Loomis, 122 Mass. 431; Inhab. of School Dist. v. Ætna Ins. Co., 66 Me. 370.
2 Barber v. St. Louis etc. R. Co., 43 Iowa, 223.
3 Meyer v. Construction Co., 100 U. S. 474; Scott v. Clinton & S. R. Co., 6 Biss. 529; Gurnee v. Brunswick, 1 Hughes, 270; Greene v. Klingler, 10 C:nt. L. J. 47; Whitehouse v. Continental Ins. Co., 37 Leg. Int. 225; Phenix Life Ins. Co. v. Saettel, 33 Ohio St. 278.
4 Traders' Bank v. Tallmadge, 9 Fed. Rep. 363.
5 Scott v. Clinton & S. R. Co., 6 Biss. 529; Murray v. Holden, 2 Fed. Rep. 740.
6 Babbitt v. Clark, 103 U, S. 606.
8 Gurnee v. Brunswick, 1 Hughes, 270; Danville Banking & T. Co. v. Parks. 88 III, 170; Cirswell v Schley, 59 Ga. 17; Cole v. La Chambre, 31 La. An. 41; New York W. & S. Co. v. Loomis, 122 Mass. 431; Inbab. of School Dist. v. Ætna Ins. Co., 66 Me. 370; Watt v. White, 46 Tex. 333; Aldrich v. Crouch, 10 Fed. Rep. 305.
9 Scott v. Clinton & S. R. Co., 6 Biss. 529; Stough v. Hatch, 16 Blatchf. 233.
10 Palmer v. Call, 4 Dill. 566.
14 Atlee v. Potter, 4 Dill. 553; McCullcugh v. Sterling School F. Co., 4 Dill. 563.
15 Palmer v. Call, 4 Dill. 566.
13 Scott v. Clinton & S. R. Co., 6 Biss. 523. See Michigan C. R. Co. V. Andes Ins. Co., 9 Ch. L. N. 31.
19 Meyer v. Norton, 9 Fed. Rep. 433; Wheeler v. Liverpool L. Ins. Co. 13 The Reporter, 563.
20 Wheeler v. Liverpool L. Ins. Co., 13 The Reporter, 418. 21 Kerting v. Am. Oleographic Co., 10 Fed. Rep. U. S. 17
22 Warren v. Pa. R. Co., 13 Blatchf. 231. See Bright v. Milwaukee etc. R. Co., 1 Abb. N. C. 14; Forrest v. Edwin Forrest House, 1 Fed. Rep. 489.
23 Young v. Andes Ins. Co., 3 Cent. L. J. 719. 24 Aldrich v. Crouch, 10 Fed. Rep. 375. 25 Fletcher v. Hamlet, 108 U. S. 408. 26 MacNaughton v. Southern Pacific Coast R. Co., 19 Fed. Rep. 881. 27 Flagg v. Walker, 109 Ill. 494. 28 Winberg v. Berkeley Co. Ry. & L. ('o., 29 Fed. Rep. 721.
29 Whitehouse v. Continental Fire Ins. Co., 14 Phila. 431; Kerting v. American Oleograph Co., 11 Biss. C. Ct. 81.