Baltimore & Ohio Railroad v. Bates,
119 U.S. 464 (1886)

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U.S. Supreme Court

Baltimore & Ohio Railroad v. Bates, 119 U.S. 464 (1886)

Baltimore and Ohio Railroad v. Bates

Argued November 12, 1886

Decided December 13, 1886

119 U.S. 464


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 § 639, relating to the removal of causes from state courts to federal courts, were repealed by the Act of March 3, 1870, 18 Stat. 470, but subsection "Third" was not so repealed.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

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