Within the meaning of § 3, Act of March 3, 1875, 18 Stat. 471,
regulating removals of causes from state courts, a suit in equity
may be "first tried" at the term of the state court at which, by
the rules of that court, the respondent is required to answer and
the complainant may be ordered to file replication.
This suit in equity, begun in the state courts of Illinois, was
removed to the circuit court of the United States, and thence
remanded to the state court. The defendants appealed from the order
remanding it.
MR. JUSTICE MILLER delivered the opinion of the Court.
This is an appeal from an order of the Circuit Court for the
Page 113 U. S. 85
Northern District of Illinois, remanding to the state court a
case which had been removed from that into the circuit court.
The removal was prayed for in the petition, on the ground that
the controversy was between aliens and citizens of the State of
Illinois, and one of the points argued before us is that other
parties to the suit, with interest opposed to that of the
appellants at whose instance the removal was made, are citizens
also of Illinois, and for that reason the suit was not
removable.
But we do not pass on this point, because we are of opinion that
the application for removal came too late.
The Act of March 3, 1875, under which this removal was asked,
requires of the party seeking it that he or they
"make and file a petition in such suit in such state court
before or at the term at which such cause could be first tried, and
before the trial thereof for the removal of such suit into the
circuit court."
Under the Act of 1789, § 12, 1 Stat. 79, the right of removal
could only be exercised by a defendant in a court of a state of
which he was not a citizen, and he was required to make his
application for the removal at the time of entering his appearance.
The reasons for this were obviously that the plaintiff, who had
selected the state court as his forum, should not be permitted to
change it after calling his adversary there, and that the
defendant, who had a right of removal and failed to exercise it at
the earliest period possible, should be presumed to have acquiesced
in the forum chosen by the plaintiff. The law remained in this
condition until an Act of Congress of July 27, 1866, authorized an
alien or citizen of a state other than that in which the suit is
brought to remove the cause, though there be other defendants who
are citizens of that state, when there can be a final determination
of the controversy, so far as he is concerned, without the presence
of the other defendants. In this class of cases, the petition for
removal could be filed at any time before the trial or final
hearing of the cause. An act to amend this act, approved March 2,
1867, authorized either plaintiff or defendant in a
Page 113 U. S. 86
state court, when they were citizens of different states, to
remove the suit on account of prejudice or local influence into the
circuit court of the United States, if he filed in the state court
an affidavit of the existence of this cause of removal at any time
before the final hearing or trial of the suit. These latter acts do
not speak of terms of the courts, or of the appearance of the
moving party; but, using the words "hearing" and "trial" in their
appropriate sense of a hearing in chancery and a trial at law,
permit the removal at any time before the hearing or the trial is
begun.
Removal Cases, 100 U. S. 457.
The act of 1875, which governs the case before us, while
superseding by its general provisions nearly all the removal
statutes, prescribes a rule which is neither so stringent as the
act of 1789 nor so lax as those of 1866 and 1867. While the party
who has a case for removal is not put to his election to exercise
or abandon the right to remove at the moment of entering his
appearance, he is not permitted unreasonably to delay this election
during all the period incident to the preparation of the case,
until both parties find themselves in condition to go to trial at
law or are ready for a hearing in chancery. The later act clearly
requires more diligence in making the election than this. If it had
intended to enact that the removing party had until the case was
ready for trial on both sides or was fully at issue or was noticed
or set down for trial, it would have been easy to indicate this in
words. The language, however, which was adopted means a very
different thing. It is not the time when the case stands ready for
trial on the calendar, but the term at which it could be first
tried. Not the term at which the party can no longer delay a trial,
but the term at which it could be first tried. These words have no
meaning if they do not mean the first term after the commencement
of the suit at which a trial was in order was a thing which the
urging or pursuing party had a right to look for, and to put his
adversary to a showing if he desired a continuance. In the language
of this Court, "the election must be made at the first term at
which the cause is in law triable."
Babbitt v. Clark,
103 U. S. 606. In
other words, at that term in which, according to the rules of
procedure of the court,
Page 113 U. S. 87
whether they be statutory or rules of the court's adoption, the
cause would stand for trial if the parties had taken the usual
steps as to pleading and other preparations. This term at which the
case could be first tried is to be ascertained by these rules, and
not by the manner in which the parties have complied with them or
have been excused for noncompliance by the court or by stipulation
among themselves.
On this point, the language of McCrary, C.J., in
Murray v.
Holden, 2 F. 740, is very pertinent. "One of the objects," he
says,
"of the act of 1875 was to prevent the abuses which had been
practiced under the acts of 1866 and 1867, which allowed a removal
at any time before the final hearing. It was evidently the purpose
of Congress to fix an earlier and definite time, which would not
permit the litigant to experiment in the state court until
satisfied he would fail there, and then change his forum. In all
the states there is, by law or rule, a trial term --
i.e.,
a term at which a cause may for the first time be called for a
trial. In practice, but few contested cases are tried at the first
trial term, and it often happens that controversies arise upon
questions of pleading, so that no issues of fact are joined at that
term. It is nevertheless the term at which, within the meaning of
the law, such cases could be first tried, and therefore is the term
at or before which the petition for removal must be filed."
The case of
Babbitt v. Clark, supra, in this Court is
also in point. The Court there says:
"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 this construction of the statute, which is undoubtedly
sound, there is no difficulty in deciding this case. While it is a
chancery cause, the same principles must govern it, though it may
require a little more care in determining when it could be first
tried.
It appears by a stipulation in the case that the first Monday in
every month is the beginning of a new term of the Superior Court of
Cook county, from which this suit was removed. It
Page 113 U. S. 88
also appears that the suit was brought to the September term,
1883, of that court, and the defendants, who were the removing
party, and are also appellants here, obtained an extension of time,
by order of the court, for thirty days from September 20, to answer
the original bill, and like time was granted to the defendants in a
cross-bill to answer that. This time was extended afterwards in
both cases, by agreement of counsel, until January 11, 1884, and on
that day they were filed. The application for this removal was made
in the February term, 1884.
It thus appears that, including the appearance term at which the
case might have been tried if appellant had answered according to
rule instead of obtaining an extension of thirty days by order of
the court, there were five terms of the court at which the motion
could have been made for removal in which no such motion was made.
We see no reason why this case was not triable at any of those
terms according to the due course of proceedings in such cases. The
only reason why it was not so tried was the time beyond that of the
usual course prescribed by rule, which was obtained by order of the
court or by agreement of the parties. The case was certainly
triable at the January term, after the answers were all in, for it
could have been then tried on bill and answer, or the plaintiff
have been forced to file replication, which could have been done
instanter.
The decree of the circuit court remanding the case to the
state court is affirmed.