CROUCH, impleaded, etc.
(Oircuit Court, N. D. Illinois. February 9, 1882.)
1. REMOVAL OF CAUSE-SHOWING REQUIRED.
It must affirmatively appear on the record, or by facts in the petition, that the case could not have been heard and tried at a term before t4e application was made. 2. SAME-CONBTURCTION OF SECTION 3 OF ACT OF MAUCH 3, 1875. 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 too late
SA,ME-A,pPLICATION UNDER ACT OF
1867. The statute of 1867 does not a citizen of the state in which a suit is brought to make application to remove on account of prejudice, but only the citizen of another state, where the suit is between such citizen and the citizen of the state iJi. which the suit is brought.
bond given under, the act of congress, and the transcript has now been presented to this court, and the court is again called upon to determine whether the cause is properly removable. There is no otherobjection except that the application was not in time, and we may at present consider the question as if the application were made only under the alct of 1875, the third section of which declares that it must be roade "before or at the term. at which the cause could be first tried, and before the trial thereof." The only difference between the application now and when the cause was before this court on the former application, is that in the second petition which was filed in the state court Grouch says that the cause could not previously have been tried or heard in the of Cook, county. Why it could not have peen heard or circuit tried he does not state, and the question for the court to determine is whether, upon this statement, when connected with the other facts disclosed in the record, it can be presumed that the application was made in time under the act of congress; and, I think, it cannot be so presumed, a,nd that the case is not essentially changed from the position which it occupied at the former hearing before this court. It is no further ichanged than by the above allegation upon the face f)f the petition, and the court cannot assume that constitutes a sufficient reason why the application was not made befor'e. If we consider it--'as perhaps we cannot-an appiication made on the twentieth day Of October, 1881, and not on the twenty-fifth day of January, 1882, I am of the same opinion that I was on the former occasion, that it does not affirmatively appear upon this record, or even by the petition, that the case could not have been heard and tried before the application was made on thidwentieth of October; and, of course, for a much stronger reason, before it was made' 6n the twen.ty-fifth of January of this year. Suppose there must be an ii;lsue made up in the case, and the cause is in a condition in which it cannot be heard and tried on account of pressure of business, if the return term 'has arrived, and the pleadings are filed aCGording to the rules and practices of the court, it is not competent for a party to lie by and allow a term to elapse, and then make his application and say is in time. I take it that the trne 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 :iftel' that term in which it is in, that condition comes too late. Now, it may be that there was a pressure of business, so that the court could not very well try the case. But if that were so, and there were other cases having
ALDRICH V · . ROUCa. C
priority over it on the docket, it may still have been in a condition where it could have been tried and heard, within the meaning of the statute. The meaning of this statute is not that the court in its regular order, if it proceeded in that way, did not take up tho case, but where the court could not take up the case and hear and try it, whatever might be the understanding as to other cases, or of the counsel who were employed in other cases. That seems to be the meaning of the language of the statute, "before or at the first term at which the cause could be tried, and before the trial thereof." This was the construction put upon this clause of the statute in the cases which have been cited, and it. was the construction by this court in Ke1·ting v. American Oleograph 00., ante, 17, where one of the parties had a right to set the case down for hearing and did not. Now, in one sense, it had not been set down for hearing; but the reason why it was not was because the counsel did not so choose. It was not competent for a party to decline to set the case down for hearing and t\1en allow a term to pass and. make an application subsequently for a removal of the cause. The application made under the act of 1867 clearly is not within the statute. The application for removal ·was made by Crouch, one 'of! the defendants, and the only defendant in court. He is a citizen of Illinois. The plamtiff, against whom, this application is made, is a citizen of South Carolina, and the statute does not permit a citizen of the state in which the suit is brought to make an applIcation to .remove on account of prejudice, but only the citizen of another state, where the suit is between such citizen arid the citizen of the state in which the suit is brought. This case will have to gci back to the state court, on the ground that the case has not been removed from the state court. Bible SocietlJ v. Grove, 101 U. S. 610; Babbitt v. Olark,103 U. S. 606; Gumee v. County of Brunswick, 1 Hughes, 270; MurraYv. Holden; 1 McCrary, 341; [S.C. 2 FED. REP. 740 ;] Forrest .v. Keeler, 17 Blatchf. 522; Kerting v. American Oleograph Cd.,
NOTE. The act of 1875 requires the petition to be made and filed in thfl state court before or at the term at which the cause could lJe first tried on its merits, and before the trial thereof. American Bible Society v. Grove, 101 U. S. 610; Ames v. Colorado Cent. R. Co. 4 Dill. 260; McLean v. Chica.go & St. P. R. Co. 16 Blatchf. 319; Pulton v. Golden, 20 Albany Law J. 229; MUT1'ay v.Holden, 2 FED. REP. 740; Huddy v.Havens, 1) Cent. Law J. 66; 1'aylor v. Rockefeller, 7 Cent. Law J. 349. It is the evident intention of the act of March 3, 1875, § 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. G'urnee v. Brunswick, 1 Hughes, 270; Danville Banking & T. 00. v. Parks, 88 Ill. 170; Oarswell v. Schley, 59 Ga. 17; Oole v. La Ohambre, 31 La. Ann. 41; New York W. & S. 00. v. Loomis, 122 Mass. 431; I nhab. of School Dist. v. ./Etna Ins. 00. 66 Me. 370; Watt v. Whitt, 46 Tex. 338. H the state law requires that the case be tried at a certain term it cannot be removed after that term, whether the issues are made up or not. Atlee v. PotteT. 4 Dill. 559. 'rhe first term at which the case can be tried is the term at which there is an issue for trial. Meyer v. Oonstruction 00. 100 U. 8. 474; Scott v. Olinton & S. R. Co. 6 Biss. 529; Gurnee v. Brunswick, 1 Hughes, 270; Green v. Kinglel', 10 Cent. Law J. 47; Whitehouse v. Continental Ins. 00. 37 Leg; Int. 225; Phcmix Life Ins. Co. v. Saettel, 33 Ohio 8t, 278. The term" at which a cause could be first tried" means when the issues are first made up. Scott v. Olinton & S. R.Co. 6 Biss. 529. A case is in a condition to be tried when it is at issue, but a case is not at issue, where the answer requires a reply to be filed, till such reply is filed. Mich. Cent. R. Co. v. Andes Ins. 00. 9 Chi. Leg. News, 34. A cause 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 Chi. Leg. News, 33. As where he has just been served with process, GJl'eene v. Kingler, 10 Cent. Law J. 47. 'rhe application must be made when the cause is ready for trial, although the court and parties may not be ready to try it. Gm'nee v. Brunswick 00. 1 Hughes, 270; Blackwell v. Brown, 1 FED. REP. 351; Ohicago, B. & Q. R. Co. v. Welch, 44 Iowa, 665; Whitehouse v. Ins. Co. 2 FED. REP. 493. So, if the c.ase was at issue and could have been tried, but was continued over the term by consent of parties, it is then too late. Scott v. Clinton & S. R. 00.6 Biss. 529; Stough v. Hatch, 16 Blatchf. 233. Unless the state law did not require it to be tried at the appearance term. Palmer,. v. Call, 4 Dill. 566. Under the law of 1867, Rev. 8t. § 639, par. 3, when the defendant is a citizen of the state where suit is brought, plaintiffs cannot remove the case on the ground of local prejudice if one of them is a citizen of the same state, except where the controversy cannot be settled without the presence of the other plaintiffs. Bliss v. Rawson, 43 Ga. 181; Martin v. Ooons, 24 La. Ann. And see Bryant v. Scott, 67 N. C. 391. But a non-resident plaintiff may remove a cause against a citizen of the state in which suit is brought and a citizen of another state, the latter of whom voluntarily appears. Ake1'ly v. Vilas, 2 Biss. 110; S. C. 1 Abb. 284; Sands v. Smith, 1 Dill. 290; S. C.1 Abb.368.-[ED.
and others v. ATLANTIO & Omo R. Co. and others.·
(Circuit OO'Urt, E. D. P,nns1/lflania.
October 19, 1881.)
REMOVAL OJ' CAU8Ke-JURISDICTION-AoT OJ' MARCH
8, 1875. The United States courts have no original jurisdiction under the act of March 8, 1875, (18 8t. 470,) in suits between citizens of one state and citizens of t.he same and of another state.
Demurrer to Bill in Equity. The bill was filed in the United States cirouit court for the eastern district of Pennsylvania by Samuel D. Karns and George C. Howe, the Atlantic & Ohio Railroad both citizens of Company, the Royal Land Company, and the Potomac, Fredericksburg & Piedmont Railroad Company, all three being oorporations of the State of Virginia; six individual defendants being the stockholders of said Atlantic & Ohio Railroad Company, one of them being a oitizen of Pennsylvania, and the remaining five being citizens of other Jacob H. Walter, and P. Y. Hite, all states, and L. Harry citizens of Pennsylvania. The eomplaint of the bill was, in brief, that complainants, who, as contractors, had built and completed the Potomac, Fredericksburg & Piedmont Railroad, had, on account of financial embarrassments, assigned their contract, together with a controlling interest which they owned in the stock of the Royal Land Company, a corporation which had purchased the railroad, to respondents Walter and Rite, as collateral security for money advanced, and in trust to sell the road, reimburse themselves and the complainants, and pay the surpluB to the Royal Land Company; that Walter and Rite had, in conjunction with the Royal Land Company, which they controlled by means of complainants' stock, made, in fraud of the trust, a formal sale and transfer of the said road to respondent L. Harry Richards, for a nominal consideration, but upon a secret trust for their own benefit; that Richards, acting as their agent, had contracted to sell the road to respondents, the Atlantic & Ohio Railroad Company, for $300,000. Complainants prayed for an injunction to restrain the purchaser from paying the consideration to Richards, and for,. receiver to receive the consideration money and hold H until fina: hearing. The court, after hearing, granted a preliminary injunction and
.Reported by Frank P. Prichard, Esq.,
ot the Philadelphia bar·.