JOHNSON 17. JOHNSON.
(Circuit Oourt, S. D. N6'W York.
REMOVAL OF CAUSE-Tum OF ApPLICATION.
Under the act of 1875 the first term during which the cause might bave been tried means the first term when the cause is legally triable, not a subsequent term to which it may have been legally postponed by agreement, or by. order of the court, and it has no reference to the presence or absence of witnesses, or the crowded state of the docket.
2. SAME-PREJUDICE AND LOCAL-!NFLUENCE ACT. It is only where a suit is removed on account of prejudice or local influence, under subdivision 3, § 639, Rev. St., which is not repealed by the act of 1875,
that a removal may be had at any time before the final hearing.
SAME-DIVORCE-REMAND ON MOTION OF COURT.
An action for divorce a mnculo and for alimony, removed from the state court, may be remanded by this court of its own motion on suggestion of the party removing, on the ground of want of jurisdiction in this court over actions of that character.
Robertson, Harman &: Ouppia, for plaintiff. Joseph J. Marrin, for defendant. BROWN, D. J. The papers show that this cause was at issue and duly noticed for trial and placed upon the calendar of the state court for trial in October, 1881, and that it was on the day calendar and called at several terms prior to the June term, when it was removed to this court. When a cause is removed on account of the citizenship of the parties, it must, under the act of 1875, be reinoved at the first term during which the cause might have been tried in the state court. This means the first term when the cause was legally triable, not a subsequent term to which it may have been legally postponed by agreement or by order of the court; and it has no reference to the presence or absence of witnesses, or to the crowded state of the docket. Ames v. Colorado, 4: Dill. 263; Sough v. Hatch, 16 Blatchf. 233. The practice is perfectly settled in this circuit and elsewhere. Whitehouse v. The Continental, 2 FED. REP. 4:98; Murray v. Holden, ld. 740; Cramer v. Mack, 12 FED. REP. 803. It is only where a suit is removed on account of prejudice or local influence, under subdivision 3 of section 639, which is not repealed by the act of 1875, that removal may be had at any time before the final hearing. Sims v. Sims, 17 Blatchf. 369; Whitehouse v. The Continental, supra. There has been no order or adjudication of the state court adjudging that v.13,no.5-13
this cause could not have been tried before the June term, as in MeLeanv. St. Paul, 17 Blatohf. 863, 365; and the facts would not warrant any such adjudication. The cause must be remanded because not removed at the first term when it might have been tried. In another suit between the same parties for divorce' a vinculo and alimony,removed to this court by the defendant, who afterwards asked that the cause be remanqed, the plaintiff objected that :the defendant could not make such an application.
BROWN, D. J. Upon the authority of Barber v. Barber. 21 How. 582,584, I think this cause must. be temanded' by the court of its own motion aa not properly within the jurisdiction of theUillted States courts. June 27,1882.
EVERS and others.
May Term, 1882.)
(Oireuit Oourt, S. D. Mississippi. 1.
Where the contract sued on was"enterQd into between plaintiff and defendants, one of whom was a citizen of the same state with plaintiff, and the other a citizen oia foreign country, and both defendants are not only necessary but indispensable parties to the controversy, as shown fl'om the face of the bill, this court is without jurisdiction. 2.
Where the bill charged'thltt complainant was induced by false and fraudulent representations of defendant; a· citizen of Great Britain, and another party, a citizen of the same state with the complainant, to enter into contracts with defendant, and a contract with defendant and such third party, and tha\ by false and fraudulent representations of both defendant and such third party. he was induced to advance money pursuant to said contracts for the purchase of lands to be owned and held by them in common, held, that as to the con. tracts made with defendant alone, such third party was not a necessary part,y to the suit; but as to the contract entered into by all three, and which contract was recited in the bill for relief, such third party was not only a necessary, but an indispensable part,y to the suit, and that, being a citizen of the same state with complainant, this court has no jurisdiction to grant the relief sought.
HILL, D. J. The questions now presented for decision arise upon defendants' motion to dismiss the bill and their demurrer thereto, which will be considered together. The bill in substance states that complainant and defendant Baldwin are both citizens and residents of Chicago, Illinois; that defendant Evers is a subject of Queen Victoria, and resident of Ellgland;