1. Under the Act of March 3, 1875, c. 137, 18 Stat., pt. 3, p.
470, a writ of error is the proper mode for reviewing here the
order of the circuit court remanding an action at law removed
thereto from a state court, and it lies without regard to the value
of the matter in dispute.
2. The removal should not be granted if the petition therefor be
not filed in the state court before or at the term at which the
action could be first tried, and before the trial thereof. Where,
therefore, a cause, by the practice of the state court, stood for
trial upon the issue raised by the petition and answer, the rule
day having expired without filing a reply, and the plaintiff then
filed in the clerk's office a reply, without leave or notice, and
the cause was continued until the ensuing term, when, before the
cause was called for trial, the defendant presented his application
for its removal,
held that the application should not have
been granted, and the order of the circuit court remanding the
cause was proper.
The facts are stated in the opinion of the Court.
MR. CHIEF JUSTICE WAITE delivered the opinion of the Court.
This suit was brought by Parker P. Clark, George H. Clark,
Page 103 U. S. 607
Elijah F. Clark, and George P. Burnett, the appellees, citizens
of New York, in the Court of Common Pleas of Lucas County, Ohio,
against Albert T. Babbitt, the appellant, a citizen of Wyoming
Territory. By the statutes of Ohio regulating practice and
pleadings in the courts of that state, a civil action is commenced
by filing a petition in the office of the clerk of the proper court
and causing a summons to be issued thereon. Rev.Stat. Ohio (1880),
sec. 5035. The summons is ordinarily returnable the second Monday
after its date.
Id., sec. 5039. The only pleadings are a
petition, demurrer, answer, and reply.
Id., sec. 5059. The
rule day for the answer or demurrer to a petition is the third
Saturday, and for a reply to the answer the fifth Saturday, after
the return day of the summons, but the court, or a judge thereof in
vacation, may for good cause shown extend the time.
Id.,
secs. 5097, 5098. Every material allegation of the petition not
controverted by the answer, and every material allegation of new
matter in the answer not controverted by the reply, is for the
purposes of the action to be taken as true, but the allegation of
new matter in the reply is deemed controverted by the adverse
party.
Id., sec. 5081. When the action is founded on a
written instrument as evidence of indebtedness, a copy thereof must
be attached to and filed with the petition.
Id., sec.
5085. A trial is defined to be "a judicial examination of the
issues, whether of law or fact, in an action or proceeding."
Id., sec. 5127. And all actions are triable as soon as the
issues therein, by the time fixed for pleadings, are or ought to
have been made up.
Id., sec. 5135.
The petition in this action was filed on the 28th of October,
1878, and alleged that on the 10th of June, 1878, the plaintiff
recovered judgment in the Court of Common Pleas of the City,
County, and State of New York against Babbitt and one Edgar A. Weed
for $2,626.80 debt and costs, which was in full force and
unsatisfied except "by the following payments, to-wit, one of
$311.92, and a further payment of $887.50 made, to-wit, Oct. 1,
1878." Judgment was asked for the balance which remained unpaid,
and interest at seven percent. From the record of the New York suit
found in the transcript sent up on this appeal, it appears that the
action in that court
Page 103 U. S. 608
was brought Aug. 7, 1877, to recover a debt for goods sold
Babbitt & Weed Feb. 8, 1877, which it was alleged had been
created by the fraud of Babbitt. The answer, which was by Babbitt
alone, admitted that the debt had been contracted but denied the
fraud. It then alleged by way of defense that on the 7th of July,
1877, proceedings in bankruptcy were instituted against Babbitt and
Weed in the District Court of the United states for the Northern
District of Ohio which resulted in the acceptance by the creditors
of the bankrupts and an approval by the court of a proposition for
composition under sec. 17 of the Act of June 22, 1874, c. 390, 18
Stat., pt. 3, p. 182, by which the bankrupts were to give their
notes endorsed by T. S. Babbitt to their several creditors for
forty cents on the dollar of their debts, divided into three equal
parts and payable in three, six, and nine months, respectively,
from July 15, 1877, and that notes for the several amounts due the
plaintiffs, according to the terms of the composition, were
executed and tendered them in proper time, and ever since had been
and were subject to their order and disposal. Upon the issue thus
made, a trial was had which resulted in the judgment now sued
on.
The summons in the present action bears date Dec. 4, 1878, and
Jan. 4, 1879, at rules, Babbitt filed his answer, in which he
denied that the several payments credited on the judgment in the
petition were made by himself or Babbitt & Weed, but averred
that the item of $311.92 was collected by a sale of property on
execution, and that of $887.50 was paid the plaintiffs by John R.
Osborn, a register in bankruptcy. He then set forth the proceedings
in bankruptcy and the composition, substantially as stated in his
answer in the New York suit. He then alleged that the composition
notes intended for the plaintiffs were paid to Osborn, the register
in bankruptcy, as they matured, and that on the 11th of September,
1878, the plaintiffs took from the register the money in his hands
for them with a full knowledge of all the facts.
The rule day for a reply to this answer was Jan. 18, 1879, but
no reply was filed at that time and no extension of time was asked
or given.
The cause, therefore, under the law regulating the practice
Page 103 U. S. 609
of the court, stood for trial on the issues presented by the
petition and answer. A term of the court began on the 2d of January
and did not end until the 7th of April, though nothing but formal
business was done after March 24.
On the 3d of April, the plaintiffs filed in the clerk's office a
reply without leave of the court and without notice to Babbitt or
his counsel. In this reply the facts in relation to the New York
suit are set forth substantially as they appear on the record sued
on, and it was insisted that the acceptance of the money from the
register in bankruptcy did not operate in law as a satisfaction of
the judgment. The next term of the court began on the 28th of
April, and on the 3d of May the plaintiffs, also without leave of
the court, filed an amendment to their reply in which they set out
certain unsuccessful proceedings by Babbitt in the New York court
on the 5th of July, 1878, to obtain an injunction against the
further execution of that judgment because of his payment of the
composition notes to the register in bankruptcy.
On the 17th of May, which was during the term of the court that
began on the 28th of April and before the cause had ever been
called for trial, Babbitt filed his petition to remove the suit to
the Circuit Court of the United states for the Northern District of
Ohio on the ground that his defense, "which was made by answer
filed in due time," was "one arising under the Constitution and
laws of the United states." The state court ordered the suit
transferred, but the circuit court, on motion, remanded it because
the petition for removal was not filed in time. To reverse that
order, the case has been brought here by appeal.
It is insisted that we have no jurisdiction 1, because an order
of a circuit court remanding a cause to a state court on the ground
that the petition for its removal from that court had not been
presented in time is not reviewable here either on writ of error or
appeal; 2, because, if reviewable at all, this case should have
been brought here by writ of error, rather than appeal; and 3,
because the value of the matter in dispute does not exceed
$5,000.
Before the Act of 1875, c. 137, 18 Stat. 470, we held that an
order by the circuit court remanding a cause was not such
Page 103 U. S. 610
a final judgment of decree in a civil action as to give us
jurisdiction for its review by writ of error or appeal. The
appropriate remedy in such a case was then by mandamus to compel
the circuit court to hear and decide.
Railroad
Company v. Wiswall, 23 Wall. 507;
Insurance
Company v. Comstock, 16 Wall. 258. But the fifth
section of that act provides that if it satisfactorily appears to
the circuit court that a suit has been removed from a state court
which does not really and substantially involve a controversy
properly within the jurisdiction of the circuit court, it may be
remanded, and the order to that effect shall be reviewable by this
Court "on writ of error or appeal, as the case may be."
The appellees contend that the right of appeal or writ of error
which is here given applies only to cases which are remanded
because the subject matter of the controversy is not one within the
jurisdiction of the circuit court. The language of the statute
might be more explicit in this particular than it is, but we think
it may fairly be construed to include a case where the circuit
court decides that the controversy is not properly within its
jurisdiction because the necessary steps were not taken to get it
away from a state court, where it was rightfully pending. The right
to remove a suit from a state court to the circuit court of the
United states is statutory, and to effect a transfer of
jurisdiction, all the requirements of the statute must be followed.
If this is done, the controversy is brought properly within the
jurisdiction of the circuit court and may be lawfully disposed of
there; but if not, the rightful jurisdiction continues in the state
court. When, therefore, the circuit court decides that a
controversy has not been lawfully removed from a state court and
remands the suit on that account, it in effect determines that the
controversy involved is not properly within its own jurisdiction.
The review of such an adjudication is clearly contemplated by the
Act of 1875.
We think also this right of review has been given without regard
to the pecuniary value of the matter in dispute. There is no
pecuniary limit fixed to our jurisdiction in the Act of 1875
itself. Final judgments and decrees in the circuit courts in civil
actions cannot ordinarily be brought here for review unless
Page 103 U. S. 611
the value of the matter in dispute exceeds $5,000, Rev.Stat.,
secs. 691, 692; 18 Stat. 315, c. 77, sec. 3, but an order of the
circuit court remanding a removed suit to the state court is in no
just sense a final judgment or decree in the action. It simply
fixes the court in which the parties shall go on with their
litigation. Under the old law, there was no pecuniary limit to our
jurisdiction to proceed in this class of cases by mandamus, and we
think it was the intention of Congress to substitute appeals and
writs of error for that mode of proceeding. If the new remedies are
found to be productive of vexatious delays on account of the great
accumulation of business in this Court, it will be easy for
Congress to do away with the evil by a repeal of the law. It
follows that if the order in question could properly be brought
here by appeal, we have jurisdiction.
Congress evidently intended that orders of this kind made in
suits at law should be brought here by writ of error, and that
where the suit was in equity, an appeal should be taken. That is
the fair import of the phrase "writ of error or appeal as the case
may be." This was a suit at law, and consequently should have been
brought up by writ of error. There seems to have been very little
attention paid to this distinction heretofore, and we now find that
we have often considered cases on writ of error that ought to have
been presented by appeal, and on appeal when the proper from of
proceeding would have been by writ of error. No objection was made,
however, at the time, and we did not ourselves notice the
irregularity. Without deciding whether we would reverse the order
of a circuit court if objection were made when the case was brought
up in a wrong way, we are not inclined to delay a decision on the
merits in this case because of the irregularity which appears, as
we think the suit was properly remanded, and the order to that
effect should be affirmed.
The Act of 1875 requires that the petition for removal shall be
filed in the state court at or before the term at which the suit
could be first tried and before the trial. The answer of Babbitt in
this case was filed in time, and the rule day for a reply expired
on the 18th of January. Had the case been called at any time after
that date and before April 3, neither
Page 103 U. S. 612
party could have objected to a trial on the pleadings as they
then stood. As no reply had been filed, the new facts set out in
the answer would have been taken as true, and the rights of the
parties determined accordingly. The case arising under the
Constitution and laws of the United states was presented by the
answer, and the right of Babbitt to his removal was as apparent
then as now. It needed no reply to put his case in a condition for
judicial examination. His answer required the court to determine
whether in law, with all the facts set out and uncontroverted, his
composition in bankruptcy presented a valid defense to the judgment
sued on. The pleadings presented, to say the least, an issue of law
to be tried.
It is true that after the court had substantially closed the
business of the term and had stopped the trial of causes, a reply
was put on file without leave, which was supplemented the next
term, also without leave, and that in this way the issues as they
originally stood may have been to some extent changed; but that
does not, in our opinion, relieve Babbitt from the consequences of
his delay. The Act of Congress does not provide for the removal of
a cause at the first term at which a trial can be had on the
issues, as finally settled by leave of court or otherwise, but at
the first term at which the cause, as a cause, could be tried.
Under sec. 12 of the Act of 1789, c. 20, 1 Stat. 79, the
application for removal must have been made by the defendant when
he entered his appearance, but under the acts of 1866, c. 288, 14
Stat. 306, and 1867, c. 196,
id. 558, it might be effected
at any time before trial. This was the condition of existing
legislation when the Act of 1875 was passed, and the language of
that act shows clearly a determination on the part of Congress to
change materially the time within which applications for removal
were to be made. It was more liberal than under the Act of 1789,
but not so much so as in the later statutes. Under the acts of 1866
and 1867, it was sufficient to move at any time before actual
trial, while under that of 1875 the election must be made at the
first term in which the cause is in law triable.
Clearly, under the laws of Ohio, this case was in a condition
for trial, and actually triable, more than two months before
the
Page 103 U. S. 613
January Term closed. It follows that the presentation of the
petition for removal at the next term was too late, and the order
of the circuit court remanding the cause on that account is
consequently
Affirmed.