Imágenes de páginas
PDF
EPUB

McCullough v. Sterling School F. Co., 4 Dill. 563); 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. (Palmer v. Call, 4 Dill. 566.) 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 (Warner v. Sisson, 28 N. J. Eq. 117); and under the code this includes foreclosures of mortgages. (Palmer v. Call, 4 Dill. 566.) 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. (Scott v. Clinton & S. R. Co., 6 Biss. 529; see Michigan C. R. Co. v. Andes Ins. Co., 9 Chic. L. N. 34.) 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. (Meyer v. Norton, Fed. Rep. 433; Wheeler v. Liverpool L. Ins. Co., 13 The Reporter, 563.) 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. (Wheeler v. Liverpool Life Ins. Co., 13 The Reporter, 418.) 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. (Kerting v. Am. Oleographic Co., 10 Fed. Rep. U. S. 17.) 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. (Warner 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; 17 Blatchf. 532.) 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, 1867. (Young v. Andes Ins. Co., 3 Cent. L. J. 719.) It must affirmatively appear on the record, or by farto in the petition, that the case could

not have been heard and tried at a term before the application was made. (Aldrich v. Crouch, 10 Fed. Rep. 305;11 Biss. 180.)

When cause should be first tried.-To authorize a removal, the action must, at the time of the application, be actually pending for trial. (Vannevar v. Bryant, 21 Wall. 43; S. C., 106 Mass. 180.) The act omits the words "final hearing," and uses simply the word "trial" (McCallon v. Waterman, 1 Flippin, 652), 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 (Lewis v. Smythe, 2 Woods, 117); but it cannot be said to have commenced when only preparations have been made for it. (Removal Cases, 100 U. S. 457; Yulee v. Vose, 99 U. S. 539; S. C., 64 N. Y. 449.) 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 order of substitution has been entered. (Hodson v. Lake Shore etc. R. M. Co., 13 The Reporter, 41.) 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. (Mich. Cent. R. Co. v. Andes Ins. Co., 9 Chic. L. N. 34.) 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. (Stapleton v. Reynolds, 9 Chic. L. N. 33.) So, an intervenor may remove at the time of his intervention (Burdick v. Peterson, 11 The Reporter, 829); as where he has just been served with process. (Greene v. Klinger, 10 Cent. L. J. 47; 10 Fed. Rep. 689.) 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. (Aldrich v. Crouch, 10 Fed. Rep. 10; 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.) Where a State statute does not fix the time within which

pleadings should be filed, the case is not triable till issue is joined, in pursuance of an order of the court. (Van Allen v. Atchison C. & P. R. Co., 3 Fed. Rep. 545; 1 McCrary, 598.) The application must not only be made before the trial begins and before the jury is called (St. Anthony's F. W. P. v. King & Bridge Co., 23 Minn. 186), but at the time when the cause is ready for trial, although the court and parties may not be ready to try it. (Gurnee v. Brunswick Co., 1 Hughes, 270; Blackwell v. Brown, 1 Fed. Rep. 351; Chicago, B. & Q. R. Co. v. Welch, 44 Iowa, 665; Whitehouse v. Ins. Co., 2 Fed. Rep. 493.) When a cause is noticed for trial and is on the calendar, it is too late. (Stough v. Hatch, 8 The Reporter, 7.) 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. (Hunter v. Royal Canadian Ins. Co., 3 Hughes, 234.) Defendants, not being obliged to redocket 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. (Pettilon v. Noble, 7 Biss. 449.) The right of removal does not exist after a stipulation filed admitting the claim sued on (Keith v. Levi, 2 Fed. Rep. 743; I McCrary, 343); nor when the plaintiff is guilty of laches. (Broadnax v. Eisner, 13 Blatchf. 366.) A State court is under no obligation to delay a trial to enable the party to prepare a petition (U. S. Savings Inst. v. Brockschmidt, 72 Ill. 370); 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. (Traders' Bank v. Tallmadge, 13 The Reporter, 714.) Removal cannot be obtained after the cause has been twice fixed for trial at two different sessions of the court. (Cole v. La Chambre, 31 La. An. 41.) 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. (N. Y. W. etc. Co. v. Loomis, 122 Mass. 431. 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. (McCallon v. Waterman, 4 Cent. L.

J. 413; S. C., 1 Flippin, 651; see Bright v. Milwaukee R. Co., 1 Abb. N. C. 14; criticised in 4 Cent. L. J. 492.) 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 (Watt v. White, 46 Tex. 338), since the petition cannot be filed after the trial has commenced (Del. Riv. Const. Co. v. Davenport & St. P. R. Co., 46 Iowa, 406); or even after the pleadings have been read and the evidence submitted, and before the argument has begun. (Lewis v. Smythe, 2 Woods, 177.) There has been a “trial” if a judgment has been rendered sustaining a demurrer to an answer. (Meyer v. Norton, 9 Fed. Rep. 433.) If a case be referred to a master in chancery, it cannot be removed (Jifkins v. Sweetser, 13 Chic. L. N. 103); nor should a petition be granted where a suit was tried, and the jury disagreed, and the case was continued. Amer. Bible Soc. v. Grove, 101 U. S. 610.) 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. (Jifkins v. Sweetser, il The Reporter, 625.) A removal as to garnishee proceeding instituted concurrently with the action is too late after judgment on the main action. (Pratt v. Albright, 9 Fed. Rep. 634; 10 Biss. 511.) If the appellate tribunal enters a judgment instead of remanding the case, the case cannot be removed. (Jifkins v. Sweetser, 13 Chic. L. N. 103.) But if a party is forced to trial by a refusal to order a removal, he may remain till after reversal, and then remove. (Railroad Co. v. Koontz, 3 Morr. Trans. 34.) So a case is not removable after a writ of scire facias has issued. (Mooney v. Agnew, 4 Fed. Rep. 7; 2 McCrary, 89.) The application made within the time specified by the statute for appearance on a motion to reopen a decree is in time. (Harter Town v. Kernochan, 2 Morr. Trans. 235.)

Time under acts of 1866, 1867.—A non-resident plaintiff is entitled to a removal as to all the defendants. (Sands v. Smith, 1 Dill. 190.) He may remove as against a citizen of the State in which suit is brought, and a citizen of a third State who had voluntarily appeared. (Sands v. Smith, 1 Dill. 190, doubted, Sewing Mach. Cos.' Cas, 18 Wall. 553.) A removal is not authorized when the

application is made by a citizen of the State where suit is brought (Hurst v. Railroad Co., 93 U. S. 71), nor where both parties are citizens of the same State. (Knapp v. Troy & B. R. Co., 20 Wall. 124.) If the substantial parties are two corporations, and both citizens of the State, the cause cannot be removed. (W. A. & G. R. Co. v. A. & W. R. Co., 19 Gratt. 592.) So if both parties become citizens of the same State prior to the filing of the petition, the cause cannot be removed. (Laird v. Čonn. & P. Riv. R. Co., 55 N. H. 375.) A defendant cannot remove the cause where he became a citizen of another State after the bringing of the suit. (Dart v. Walker, 4 Daly, 188; S. C., 43 How. Pr. 29; Indiana B. & W. R. Co. v. Risley, 50 Ind. 60; Tapley v. Martin, 116 Mass. 275; Dustin v. Dickinson, 2 Mich. N. P. 6; contra, Johnson v. Monell, 1 Woolw. 390; Cook v. Whitney, 3 Woods, 715.) All the plaintiffs must be citizens of the State where suit is brought, and non-resident plaintiffs cannot remove wholly nor as to themselves. (Bliss v. Rawson, 43 Ga. 181.) If citizens of different States unite as plaintiffs, defendant, although a citizen of another State, cannot remove the cause (Bryant v. Scott, 67 N. C. 391); nor in such case can plaintiffs remove. (Bliss v. Rawson, 43 Ga. 181; Beery v. Irick, 22 Gratt. 484; Martin v. Coons, 24 La. An. 169.) Nor can the suit be removed if a citizen of the State joins with a citizen of another State (Goodrich v. Hunton, 29 La. An. 372; Upton v. New Jersey S. R. Co., 25 N. J. Eq. 372; Case v. Douglass, Dill. 299; Fisk v.

Chicago R. I. & P. R. Co., 53 Barb. 472; Hazard v. Durant, 9 R. I. 602); so if there are several plaintiffs, and one of them is not a citizen of the State, it cannot be removed (Case v. Douglass, 1 Dill. 299; Fisk v. Chicago, R. I. & P. R. Co., 53 Barb. 472; Hazard v. Durant, 9 R. I. 602; Merwin v. Wexel, 49 How. Pr. 115); and a suit in which a citizen of the State is plaintiff and a domestic corporation and two citizens of another State are joint defendants is not removable. (Howland etc. Works v. Brown, 13 Bush, 681.) The act of 1867 does not apply where the cause of removal is alienage (Crane v. Reeder, 28 Mich. 527); so an alien defendant is not within this clause (Sewing Mach. Cos.' Cas., 18 Wall. 553; S. C., 110 Mass. 70); Crane v. Reeder, 28 Mich. 527; Davis v. Cook, 9 Nev.

« AnteriorContinuar »