KERTING v. AMERICAN OLEOGRAPH CO. and others;
(Oircuit Oourt, N. lJ. Illinois. December 23, 1881.)
REMOVAL OF CAUSES-MoTION TO REMAND.
A bill was filed in a state court on October 21, 1880, and the cause was at . issue and standing for hearing on November 30, 1880. Under the law of the state there was a term of that court held every month, Mmmencing on the third Monday of each month, and the rule of the court in the trial of equity cases was that where any chancery case is at issue, upon notice and motion of either party, a cause, at any time within 10 days of the cOnlmencement of a term for which a trial calendar may be ordered made, may be placed on the trial calendar, etc. The canse was placed upon the trial calendar 011 March 30, 1881, and an application was made to the state court on May 16, 1881, to remove the cause to the circuit court of the United States, when a record of the cause was· filed in that court. H6ld, on a motion to remand, that the must be remanded to the state court, on the ground that the application for removal was made too late, within the meaning of the third section of the act of congress of 1875.
o. M. Hardy, for complainant.
Oonger it Gorten, for defendant.
Motion to Remand.
DRUMMOND, C. J. A motion is made in this case to remand it to the circuit court of Cook county. The bill was filed in that court on the twenty-first of October, 1880, and the process issued in the cause was returned to the November term. Under the law there is a term every month of that court, commencing on the third Monday of each month. The answers were filed to the bill on the sixteenth of November, 1880. On the thirtieth of March, 1881, an order was made by the state court on the application of the plaintiff, and due notice that the cause should be set for hearing for the April term next. On the sixteenth of May, 1881, during the April term, and before the cause was heard, an applicatIOn was made, under the act of ]875, for the removal of the cause to this court upon the proper petition and bond filed. There was at that time filed in this court a record from the state court; and, some time since, objection was made that the application for removal had not been made in time, which was then held not to be .valid, because, by the transcript from the state court, it did not appear that any replication had been filed to the answer, and that the cause Since then there has been a supplemental transcript was at filed from the state court, from which it appears that, after this objection was taken in this court, an application was made to the state v.l0,no.I-2
caurt to file a replication, because a replication had been filed on th, thirtieth of, November, 1880, which had been lost, or could not be found. The court, upon evidence which it deemed satisfactory, allowed a replication to be filed as of that day. The order of the court is a nunc pro tunc order, not in form finding that there was a replication filed on the thirtieth of November; but taking the whole proceedings of the court together, with its order upon this subject, it is clear that the court must have been satisfied that there was a replication filed on that day. It is objected by the defendants seeking a removal that the state court had no right, as this court had obtained jurisdiction of the cause, to make this order; but if it be a fact that the replication was filed on that day, and it was lost or mislaid, there can be no doubt that it was competent for the court, irrespective of the question of removal, to allow the replioation to be supplied by a similar p,aper. ,This authority the court had under the statute of this state of March 19, 1872, and probably at common law, independent of the statute. It appears that at the time the cause was set down for hearing, and perhaps before :that,some search had been made for a replication and none could be found ; and the attention of the court was called to the fact that there did not appear to be any replication among the files of the cause. It is not stated at what precise time search was made by the defendants' counsel for the replication and none was found. The question involved in the cause, then, is whether under these facts the application for a removal was made in time. We must assume that a replication was filed on the thirtieth of November, 1880. Under the statute of the state upon the subject, the oause was then to be deemed at issue lI.nd standing for hearing. It was competent for either party to call up the cause for hearing upon oral evidence to betaken in court. Under the statute of the statereplications are general, and are to be filed within a certain time after the plaintiff or his a;ttorney has been served with notice of answer filed. Consequently, up to the time when the petition for the removal of the cause was filed, there had occurred the November, December"January, February, and March terms of the circuit court of the state. ,There should be, perhaps, excluded from this list the month of November, as the replication was not filed until the last day of that month. The third section of the act 'of 1875 requires, in order to remove a suit from a state to the federal conrt, that the petition for removal must be filed in the state court before or at the term at which the case eould be first tried and before the trial thereof. This cauSe :had no*
ORTING. V. AMERICAN OLEOGRAPH CO.
been heard or tried in the state court. Could it have been tried before the April term of the state court? Unless there is some rule of the state court which prevented it from being heard before the April term, then it could hardly be said to bs within the contil:?-gency named in the statute. The rule in the state court upon the trial of chancery cases is as follows:
"When any chancery case is at issue, upon notice and motion of either party a cause, at any time within 10 days of the commencement of a term for Which a trial calendar may be ordered made, maybe placed on the trial calendar. The cases on such calendar shall be called and tried on Tuesday, Wednesday, Thursday, and Friday of each week. No more than five cases shall be fixed for trial on the same day; but if the court is behind in the call of the calendar, not exceeding six cases may be called for any one day. Altcases shall appear on the calendar in the order of the notice and motion. All cases remaining undisposed of. upon any calendarshall, without further order, be placed at the head of the next (new) calendar."
We h:we already stated thatnpon the transcript from the state court we' mustassu:me that the replication was filed to the answer on the thirtieth of November. It was then competent for either party to place the cause on the trial calendarfodhe term of December, January, February, or March. It was not, in point of ·fact, placed upon the trial calendar until the thirtieth of March, bUt it could have been by the defendants long before that time, as well as by the plaintiff; and it is difficult to understand, therefore, how, under the citcumstances of this case, we can say that this application· of the sixteenth of May, 1881, for the removal of the cause to this court, was made to the state court before it could there be tried. Theta certainly can be no inference to that effect drawn from what appears to this conrt. And the result is that the case must be remanded, on the ground that the application made for removal was too late, within the meaning of the third sectiOn of the act of con.gress of 1875.
STATE OF MISSOURI, etc.,
(Circuit Oourt, E. D. Missouri.
BUILDING CONTRAOT-PUBLIC BUILDINGS NOT SUBJEOT TO MEOHANIO'S LIENS -R8M:OVAL OF CAUSE-SURETY NO'r BOUND BY JUDGMENT AGAINST PRINCIPAL AFTER REMOVAL.
Where the contract of the surety was that his principal should furnish the material and build a public school-house for $15,000, and suits were brought on claims for mechanics' liens on the bliilding, in which judgments were rendered against the school board and the principal, aud the amounts paid upon these were in excess of the $15,000, held, the records of these judgments are ina,dmissible as evidence, for unqer the law of Missouri there can be no valid mechanics' lien upon a public school building; and the surety was not bound by the adjudications in which the judgments were obtained, because rendered in a state court after he had removed so much of the controversy as was between himself and the plaintiff to the circuit court of the United States under the provisions of the removal act of July 27,1866, (14 8t. at Large, 306.)
MCCRARY, C. J. On the question argued and submitted yesterday I am prepared to announce the conclusion reached by the court. The liability of this defendant is that of surety only. The contracts of sureties, as we all very well understand, are to be construed strictly in favor of the surety. The contract of this party was, in substance, that his principal should carry out, in good faith, the provisions of the contract for the building of a public school-house. Briefly stated, that contract was that he would furnish the material aIJ.d build the school-house for $15,000 within a certain specified time. The present question is whether the surety can be charged as liable, upon his contract of suretyship, for certain claims of mechanics' liens against the public school building, upon which suits were brought, and in which suits judgments were rendered against the school board and against the principal establishing the mechanics' liens. The plaintiff presents here the records of these judgments and offers them in evidence. The amounts paid upon these mechanics' liens was in excess of the $15,000 for which the building was to have been constructed and completed. '1'he supreme court of Missouri, in the other branch of this case, held that the principal was liable on this account to refund the amount which was paid out by the board to settle these claims which are spoken of here as mechanics' liens. It does not, however, follow that the surety is liable for that to the same extent. The supreme court may have held that, as against the principal, the mechanics' liens were established by an adjudication, and that neither the board of education nor Mr. Diedrich Tiedermann, the principal