30 Clark v. Child, 136 Mass. 344.

31 Hamlet v. Fletcher, 21 Fed. Rep. 305.

32 Clinton Bank v. Dorset Pipe and Paving Co., 20 Fed. Rep. 707.

33 Stebbins v. Lancashire Ins. Co., 59 N. II. 414.

34 Lowe v. Williams, 94 U. S. 650; McKee v. Rains, 77 U. S. 22; Jifkins v. Sweetser, 102 U. S. 177; Hess v. Reynolds, 113 U. S. 73; Gregory v. Hartley, Id. 742; Amy v. Manning, 144 Mass. 153.

35 Fiske v. Henarie, 13 Sawy. 38.

36 Bank of Marysville v. Claypool, 120'U. S. 268.

37 Baltimore etc. R. Co. v. Burns, 124 U. S. 165; Bank of Marysville v. Claypool, 120 U. S. 268; Core v. Vinal, 117 U. S. 347; Holland v. Chambers, 110 U. S. 59. And see Simonson v. Jordan, 30 Fed. Rep. 721. Woolf v. Chisholm, 30 Fed. Rep. 881; Badger v. Mulville, 22 Fed. Rep. 257. 38 King v. Worthington, 104 U. S. 44; Norton v. Phelps, 105 U. S. 333. 39 Allen v. Nott, 11 U. S. 472; Scharff v. Levy, 112 U. S. 711; Gregory v. Hartley, 113 U. S. 742.

40 Laidly v. Huntington, 121 U. S. 179. 41 Hone v. Dillon, 27 Fed. Rep. 465.

2

§ 105 p. When cause could be first tried.—To authorize a removal the action must, at the time of the application, be actually pending for trial. The act omits the words "final hearing," and uses simply the word "trial," meaning that hearing which involves the facts of the case, and their investigation by the court alone, or by the court and jury. The petition must be filed before such trial commences;3 but it cannot be said to have commenced when only preparations have been made for it. A cause may be removed before an answer is made where bailees have moved for a substitution of the real parties in interest, and the crder of substitution has been entered. A case is in a condition to be tried when it is at issue, but it is not at issue, where the answer requires a reply to be filed, until such reply is filed. A case not at issue as to one defendant may be removed as to him, although it has long been at issue as to the other parties." So an intervenor may remove at the time of his intervention; as where he has just been served with process.9 The construction of the statute is that if the case is in a condition where it can be tried in conformity with the law and the practice of the court, then an application after that term in which it is in that condition comes too late.10 Where a State statute does not fix the time within which pleadings should be filed, the case is not triable till issue

The ap

is joined, in pursuance of an order of the court. 11 plication must not only be made before the trial begins and before the trial is called, 12 but at the time when the cause is ready for trial, although the court and parties may not be ready to try it. 13 When a cause is noticed for trial and is on the calendar, it is too late.14 The mere fact, however, that a cause is ready at a term of court for the ex parte execution of a writ of inquiry by plaintiff after an office judgment is not equivalent to being ready for trial on issues joined. 15 Defendants, not being obliged to re-docket the case, need not take affirmative action for a removal until the plaintiffs cause the case to be redocketed, of which they are entitled to notice. 16 The right of removal does not exist after a stipulation filed admitting the claims sued on;17 nor when the plaintiff is guilty of laches. 18 A State court is under no obligation to delay a trial to enable the party to prepare a petition;19 and where a cause could have been noticed for trial, and the petition for removal was not filed till after the term, it was held too late. 20 Removal cannot be obtained after

the cause has been twice fixed for trial at two different sessions of the court. 21 A petition filed before trial, and at a term subsequent to entry and issue, is too late, although the case has been first put on the trial list at the term in which the petition is filed.22 A cause cannot be removed after a default entered, and before the default has been set aside, even though the service was by publication, and default not made absolute. 23 An application filed after a cause is called and plaintiff has announced himself ready, and time is granted defendants to apply for a continuance, is too late; since the petition cannot be filed after the trial has commenced; 25 or even after the pleadings have been read and the evidence submitted, and before the argument has begun. 26 There has been a "trial" if a judgment has been rendered sustaining a demurrer to an answer. 27 If a case be referred to a master in chancery, it cannot be removed;23 nor should a petition be granted where a suit was tried, and the jury disagreed, and the case was continued. 29 On reversal of a decree on a suit for an accounting, ordering an account to be taken but not giving a second hearing, the cause cannot be removed. 30 A removal as to garnishee pro

32

33

31

The

39

ceeding instituted concurrently with the action is too late after judgment on the main action.3 If the appellate tribunal enters a judgment instead of remanding the case, the case cannot be removed. 3 But if a party is forced to trial by a refusal to order a removal, he may remain till after reversal, and then remove. So a case is not removable after a writ of scire facias has issued. 34 application made within the time specified by the statute for appearance on a motion to reopen a decree is in time.35 The petition must be filed at the term at which the case can first be tried. 36 Where the State statute fixes the term at which a cause can be first tried, this is the term after which a removal cannot be had. 37 Otherwise, the words "first term at which the cause could be tried" means the first term at which the cause is in law triable, i. e., in which it would stand for trial if the parties had taken the usual steps as to pleadings, and other preparation;38 or the first term at which, by the rules of the State court, the respondent is required to answer, and the complainant may be ordered to file the replication. 3 Parties are ready for trial, when all the defendants have appeared and answered, without filing counterclaims or raising new issues. 40 Party who never was brought into court nor personally appeared, is in time if he makes application before hearing of the cause.11 A hearing to determine whether the case is ready for trial is not a commencement of the trial so as to preclude a removal. 2 There cannot be a removal after a hearing on demurrer to a complaint, on the ground that it does not state facts sufficient to constitute a cause of action, 43 for the demurrer raises an issue and is a trial of the action. 44 Demurrer is not hearing which will defeat removal in a court the rules of procedure of which are that demurrers shall be heard at the first term, and the second shall be the trial term.* 45 Application for removal after verdict of jury, subject only to decision of court, on questions presented by demurrer, is clearly too late. 46 Where a demurrer has been filed in a cause pending in the State court, raising an issue that would be triable at the regular term of the State court, but a stipulation has been filed, by which it is agreed to withdraw the pleadings, and file a new declaration and plea making an issue of fact, the

case cannot, after the term at which the demurrer would have been heard, be removed. 47 Under United States Act of March 3, 1875, requiring a petition for removal of a cause from a State to a Federal court to be filed before or at the term at which the cause can first be tried, it was held that the latest term for removal was the first term when the cause was at issue on its merits, or should be but for fault of the petitioner. 48 Where, ten years after a judgment by default was entered in an action of covenant, it was opened on condition that "no dilatory or technical plea or defense be interposed," it was held that defendant was not entitled to a removal of the judgment to a Federal court. 49 The fact that the exigencies of the State court were such that the cause could not be reached for trial at the term at which otherwise it would have been tried, does not make it removable at the following term.50 must appear affirmatively on the record, or be shown by the petition, that the case could not have been heard or tried at a term of the State court before the application for removal was made. 51 Where two actions for the same cause are pending in a State court between the same parties, proceeding to trial in one is a waiver of the right to remove the other. 52

1 Vannevar v. Bryant, 21 Wall. 43; S. C., 106 Mass. 180.

2 McCallon v. Waterman, 1 Flippen, 652.

3 Lewis v. Smythe, 2 Woods, 117.

lt

4 Removal Cases, 100 U. S. 457; Yulee v. Vose, 9 U. S. 539; S. C., 64 N. Y. 449.

5 Hodson v. Lake Shore etc. R. M. Co., 13 The Reporter, 41.

6 Mich. Cent. R. Co. v. Andes Ins. Co., 9 Ch. L. N. 34.

7 Stapleton v. Reynolds, 9 Ch. L. N. 33.

8 Burdick v. Peterson, 11 The Reporter, 829.

9 Greene v. Klingler, 10 Cent. L. J. 47; 10 Fed. Rep. 683.

10 Aldrich v. Crouch, 10 Fed. Rep. 10.

11 Van Allen v. Atchison C. & P. R. Co., 3 Fed. Rep. 545.

12 St. Anthony's F. W. P. v. King Bridge Co., 23 Minn. 186.

13 Gurnee v. Brunswick Co., 1 Hughes, 270; Blackwell v. Brown, 1 Fed. Rep. 351; Chicago, B. & Q. R. Co. v. Weich, 44 Iowa, 665; Whitehouse v. Ins. Co., 2 Fed. Rep. 493.

14 Stough v. Hatch, 8 The Reporter, 7.

15 Hunter v. Royal Canadian Ins. Co., 3 Hughes, 231.

16 Pettilon v. Noble, 7 Biss. 449.

17 Kerth v. Levi, 2 Fed. Rep. 743.

18 Broadnax v. Eisner, 13 Blatchf. 366.

19 U. S. Savings Inst. v. Brockschmidt, 72 Ill. 370.

20 Traders' Bank v. Tallmadge, 13 The Reporter, 714.

21 Cole v. La Chambre, 31 La. An. 41.

22 N. Y. W. & S. Co. v. Loomis, 122 Mass. 431.

23 McCallon v. Waterman, 4 Cent. L. J. 413; S. C., 1 Flippen, 651. See Bright v. Milwaukee R. Co., 1 Abb. N. C. 14. Criticised in 4 Cent. L. J. 492.

24 Watt v. White, 46 Tex. 338.

25 Del. Riv. Const. Co. v. Davenport & St. P. R. Co., 46 Iowa, 406. 26 Lewis v. Smythe, 2 Woods, 177.

27 Meyer v. Norton, 9 Fed. Rep. 433.

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

29 Amer. Bible Soc. v. Grove, 101 U. S. 610. 30 Jifkins v. Sweetser, 11 The Reporter, 625. 31 Pratt v. Albright, 9 Fed. Rep. 634.

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

33 Railroad Co. v. Koontz, 104 U. S. 5.

34 Mooney v. Agnew, 4 Fed. Rep. 7.

35 Harter Town. v. Kernochan, 103 U. S. 562.

36 Continental L. I. Co. v. Kessler, 84 Ind. 310; Preston v. Travelers Ins. Co., 58 N. H. 76.

37 Chrissenger v. Democrat, 22 Fed. Rep. 753.

38 George v. Hartley, 113 U. S. 742.

39 Pullman Palace Car Co. v. Spech, 113 U. S. 84.

40 Edrington v. Jefferson, 111 U. S. 770; distinguishing Hewitt v. Phelps, 105 U. S. 393; King v. Worthington, 104 U. S. 44; overruling Miller v. Tobin, 18 Fed. Rep. 609.

41 Chicago v. Hutchinson, 15 Fed. Rep. 129.

42 Maloy v. Duden, 25 Fed. Rep. 673.

43 Alley v. Nott, 111 U. S. 472; Gregory v. Hartley, 113 U. S. 742; Wilson v. Rock Island Paper Co., 20 Fed. Rep. 705; St. Louis & S. F. Ry. Co. v. Weaver, 35 Kan. 412.

44 Alley v. Nott, 111 U. S. 472; distinguishing Vannevar v. Bryant, 21 Wall. 41; Ins. Co. v. Dunn, 19 Wall. 214; King v. Worthington, 104 U. S. 44; Hewitt v. Phelps, 105 U. S. 393; overruling Miller v. Tobin, 18 Fed. Rep. 609.

45 Hone v. Dillon, 29 Fed. Rep. 465.

46 Bank of Marysville v. Claypole, 120 U. S. 368.

47 Wilkinson v. Delaware, Lackawanna etc. Ry. Co., 23 Fed. Rep. 561. 48 Wheeler v. Liverpool, London etc. Ins. Co., 60 N. H. 465; Eldred v. Becker, 60 Wis. 43.

49 Friese v. Homœopathic Mut. Life Ins. Co., 107 Pa. St. 134.

50 Badger v. Mulville, 22 Fed. Rep. 257.

51 Aldrich v. Crouch, 11 Biss. C. Ct. 180.

52 Evans v. Smith, 21 Fed. Rep. 1.

§ 105 q. Latest decisions under Act of 1875.— In suits pending when the Act of 1875 was passed, the

DESTY REMOVALS.-30.