remove

To move away from the position occupied; to displace. South v. Com’rs of Sinking Fund, 86 Ky. 100, 5 S. W. 567. To change place in any manner; to go from one place to another. First Soc. of Waterbury v. Platt, 32 Conn. 1S6.

To change or cause to change place or position. 1. To go from one place to another; to change place of residence.^ 3. To deprive of ofi Sce bv the lawful act of a superior, — another officer of the legislature. Removal for cause. Imports that a reason exists, personal to the individual, which the law and sound public opinion recognize as a good cause for his no longer occupying the place.* Implies some dereliction or general neglect of duty, some incapacity to perform the duties of the post, or some delinquency affecting the incumbent's general character and fitness for the office. ^ The power to remove an officer *' for cause " can be exerted only for just cause, after he has had an opportunity to defend." 3. To carry away something that pertains to land; as, in a statute against removing any tree, timber, stone, or other article which would pass by a sale of the land.' 4. To transfer a cause from a State court to the circuit court of the United States. The act of March 3, 1876, § 2, provides that any suit of a civil nature pending in any State court, whei-e the matter in dispute exceeds, exclusive of costs, the sum orvalue of fivfe hundred [now two thousand] dollars, and in which there shall be a controversy between citizens of different States, either party m^y remove said suit into the circuit court for the proper district.^ 1 Po Uitz^ V. Sehell, 30 F. E. 422 (1887); Phelps v. Cogswell, 70 Cal. S04 (188D). 2 Planters' Bank v. Union Bank, 16 Wall. 497 (1872). s Society v. Piatt, 12 Conn. *187 (1837). 4 People V. Nichols, 19 Hun, 448 (18T9). ' People ex rel. Munday v. Fire Commissioners, 78 N. Y. 449 (1878), Allen, J. ' " Haight V. Love, 39 N. J. L. 14 (1876): Rex v. Richardson, 1 Burr. 517(1768). This means that when the controversy is between citizens of one or more States on one side, and citizens of other States on the other side, either party may remove the suit without regard to their position as plaintiffs or defendants. For the purpose, the matter in dispute may be ascertained, and, according to the facts, the parties arranged on the opposite sides. If in such arrangement it appears that those on one side, being all citizens of different States from those on the other, desire a removal, the suit may be removed.^ To bar removal, it must appear that the trial in the State court was actually in progress in the orderly course of proceeding when the application was made. The case must be actually on trial by the court, all parties acting in good faith, before the right is gone. A party may not experiment in the State court, and, meeting unexpected difi Hculties, stop the proceedings and take his suit to another tribunal. ^ That is, a party must make an election before he goes to trial or hearing on the merits.' The act of 1875 also requires that the petition be filed in the State court at or before the term at which the suit " cjould be first tried " and before the trial. This refers to the term at which, under the legislation of the State and the rules of practice pursuant thereto, the cause is first triable, that is, subject to be tried on the merits.^ An application to remove a case, made pending trial, is made " before trial thereof," although there may have been several mistrials.* The act means that when there is a controversy wholly between citizens of different States, which can be fully determined as between them, one or more on either side actually interested may effect the removal. The right depends upon the case disclosed by the pleading, when the petition is filed. It does not matter that a defendant who is a citizen of the State of a plaintiff may be a proper but not an indispensable party. The removal of a separable controversy operates to transfer the whole suit — which was not the case under the act of 1868. * Congress has not provided for the removal of a suit in which the controversy is not wholly between citizens of different States, and to the final determination of which an indispensable party on the side seeking the removal is a citizen ot the State of one or more of the parties against whom the removal is asked.' changes made by act of March 3, 1887, under Coukt, United States Circuit, p. 281. ■ Eemoval Cases, 100 U. S. 468, 473 (1879), cases, Waite, C. J. Approved, Bank ot Mayvi Ue v. Claypool, lao id. 269-70 (1887). "Jifkms V. Sweetzer, 102 U. S. 179 (1880), Waite, Chief Justice. » Mc Lean v. St. Paul, &c. E. Co., 17 Blatch. 366 (1879), cases, Blatchford, J. » Fisk V. Henarie, 32 F. E. 425-27 (1887) cases. i Barney v. Latham, 103 U. S. 205, 212-16 (1880), Harlan, J.; Anderson v. Appleton, 32 F. R. 859 (1887), cases; Weller v. Pace Tobacco Co., ib. 862 (1887), cases. • Blake v. Mc Kim, 103 U. S. 539 (1880), Harlan, J. See The right, as indicated, being statutory, a party must show that his case is within the statute. The petition becomes part of the record, and must state facts which, with such as already appear, entitle the party to a transfer.' By the act of 1875, § 5, if it appears to the circuit court that the suit does not really and substantially involve a controversy within its jurisdiction, the court may remand the cause back, and the order be reviewed by the Supreme Court " on writ of error or appeal, as the case may be." Previously, the order was not such a final judgment or decree as gave jurisdiction for review; but a mandamus issued to compel the circuit court to hear and decide. Congress s'ubstituted appeal and writ ot error for mandamus. Such remanding order is not a final judgment or decree; it simply fixes the court in which the parties shall litigate. The review by the Supreme Court is not limited by the value in dispute." A removal cannot be had upon an affidavit made, under Bev. St., § 6.39, by the attorney, agent, or other person, for a natural person.' See Dispute; Hearing.