Subsections "First" and "Second" of Rev.Stat. § 639, relating to
the removal of causes from state courts to federal courts, were
repealed by the Act of March 3, 1870, 18 Stat. 470, but subsection
"Third" was not so repealed.
Under subsection "Third" of Rev.Stat. § 639, a petition for the
removal of a cause from a state court to a federal court may be
filed at any time before final trial or hearing.
On a petition for removal of a cause from a state court under
subsection "Third" of Rev.Stat. § 639, the petitioning party is
required to offer to the court the "good and sufficient surety"
required by that section for the purposes therein set forth, and
not the surety required by the Act of March 3, 1870, § 3, 18 Stat.
471, for the purposes named in that act.
This suit was brought in the Court of Common Pleas of Licking
county, Ohio, on the first of July, 1875, by George Bates, a
citizen of Ohio, against the Baltimore & Ohio Railroad Company,
a Maryland corporation, and having its principal office in that
state, to recover damages for personal injuries. The railroad
company filed a general demurrer to the petition on the twentieth
of September, 1876, and on the seventh of April, 1877, this
demurrer was sustained, and judgment entered in favor of the
company.
Page 119 U. S. 465
On the 7th of July, 1877, this judgment was reversed by the
district court of the county and the cause remanded to the common
pleas for further proceedings. When the case got back, the railroad
company filed a petition for removal to the Circuit Court of the
United States for the Southern District of Ohio under subsection 3
of § 639 of the Revised Statutes on the ground of prejudice and
local influence. The petition was in proper form and it was
accompanied by the necessary affidavit, but the security was such
as was prescribed by § 639 of the Revised Statutes, and not such as
was required by § 3 of the Act of March 3, 1875, c. 137, 18 Stat.
470. The act of 1875 requires security for "all costs that may be
awarded by the said circuit court if the said court shall hold that
such suit was wrongfully or improperly removed thereto." This is
not found in § 639.
The petition for removal was denied by the court of common pleas
December 22, 1877, and thereupon the railroad company answered, and
the parties went to a trial May 23, 1878, when a judgment was
rendered against the company. The case was taken then, on petition
in error, to the district court of the county because, among
others, the court erred in denying the petition for removal. On the
28th of February, 1880, the district court reversed the judgment
for this error, and the case was then taken to the supreme court of
the state, where the judgment of the district court was reversed,
and that of the common pleas affirmed, on the 15th of May, 1883,
that court holding that the security was defective because it was
not such as the act of 1875 required. To reverse that judgment this
writ of error was brought.
Page 119 U. S. 467
MR. JUSTICE WAITE delivered the opinion of the Court.
Subsections 1 and 2 of § 639 were repealed by the act of 1875,
Hyde v. Ruble, 104 U. S. 407;
King v. Cornell, 106 U. S. 395,
106 U. S. 398;
Holland v. Chambers, 110 U. S. 59;
Ayres v. Watson, 113 U. S. 594; but
subsection 3 was not,
Bible Society v. Grove, 101 U.
S. 610;
Hess v. Reynolds, 113 U. S.
73,
113 U. S. 80.
Under subsection 3, the petition for removal may be filed at any
time before the final trial or hearing.
Insurance
Co. v. Dunn, 19 Wall. 214;
Vannevar v.
Bryant, 21 Wall. 41;
Yulee v. Vose,
99 U. S. 539,
99 U. S. 545;
Railroad Co. v. McKinley, 99 U. S.
147. This petition was filed after a new trial had
actually been granted and while the cause was pending in the trial
court for that purpose. It was therefore in time, and no objection
is made to its form.
As subsection 3 has not been repealed, so much of the remainder
of § 639 as is necessary to carry the provisions of that subsection
into effect remains in force unless something else has been put in
its place. It is not contended that anything of this kind has been
done unless it be by the operation of § 3 of the act of 1875, but
that section, by its very terms, is only applicable to removals
under § 2 of the same act. The language is "that whenever either
party, or any one or more of the plaintiffs or defendants entitled
to remove any suit mentioned in the next preceding section" -- that
is to say, § 2 of the act of 1875 -- "shall desire to remove such
suit," he shall petition and give security in the manner and form
therein prescribed. Clearly, then, this section relates only to
removals provided
Page 119 U. S. 468
for in that act, and, as subsection 3 of § 639 remains in force,
because the cases there provided for are not included among those
mentioned in the act of 1875, it follows that the form and mode of
proceeding to secure a removal under the subsection will be
sufficient if they conform to the requirements of the other parts
of the section. That section, as it now stands, unrepealed, is
complete in itself, and furnishes its own machinery to effect a
removal of all cases which come within its operation. The security
is as much governed by the remainder of the section as the time for
filing the petition, and, as to that, it was distinctly held in
Hess v. Reynolds, supra, that the petition was in time if
presented before the final trial, even though it was after the term
at which the cause could have been first tried, which would be too
late if § 3 of the act of 1875 was applicable to this class of
cases. As to this, the court said in that case:
"We are of opinion that this clause of § 639 remains, and is
complete in itself, furnishing its own peculiar cause of removal
and prescribing, for reasons appropriate to it, the time within
which it must be done."
It is true this suit is between citizens of different states,
and, as such, it is mentioned in § 2 of the act of 1875; but the
fair meaning of § 3 is that the suit must be one that is removable
simply for the reason that it is one of a class such as is
mentioned in § 2. Some cases in the circuit courts have been ruled
the other way, and the decision of the Supreme Court of Ohio was
put largely on their authority; but they were all decided before
Hess v. Reynolds, supra, in this Court, and that case, as
we think, substantially covers this.
The judgment of the Supreme Court of Ohio is reversed, and
the cause remanded for further proceedings in accordance with this
opinion.
