entered in the cause, and accompanying this with all the papers on file in the cause; he sends them to the clerk of the court, in the county to which the change is granted. The court, of course, upon the application being made, designates by an order, the county to which the case shall go,1 usually the adjoining county. But, for good reasons, it may send the same to a county more remote, and before the papers are sent, the applicant for the change must pay the costs of the change, or he cannot compel the clerk to perfect it. § 10. Change of venue, in certain cases, rare. In practice, cases are rarely or never removed by change of venue, for the reason mentioned in the last specifications. $11. Each party may have one change of venue. Each party having the right to one change from the judge and one from the county,' if, after one change of either, the other party is dissatisfied, he may exercise his right, and either the county or the judge or both may be upon application changed, and the special judge has power in such a case to select another; and a second change from the county is subject to the same rules as the first.2 § 12. Objection to special judge. Any objection to a special judge, on account of want of compliance with the law as to appointment or qualifications, must be taken in limine or it will be waived. After a change has been taken from the county, the case may be remanded, by consent of parties. § 13. When a cause set for trial before special judge and not tried, what the consequence. If, where a case is set down for trial, in case of a change from the judge, and the judge before whom the case is set fails to appear, or otherwise dispose of the case, or sets it for trial at another time, the case is not thereby discontinued, but remains upon the docket, and the regular judge has jurisdiction to set it down before some other judge, subject to the rules already pointed out.3 14. Change from the county when cause stands for trial. When the change is from the county, the papers must be filed in the court to which the change is taken, ten days before the next term of the court in such county; or if the time is too short, 12 R. S. (1876) 119, § 208. * Leary v. Ebert, 57 Ind. 415. 3 Id. 4 * Glenn v. State, 46 Ind. 368. then an order must be entered fixing the time, or the change will fail.1 § 15. Change not perfected, the consequence. But if a change of venue, either from the court or judge, be improperly granted, or the papers be not transmitted in time, yet the opposite party can only take advantage of the same upon first appearance in the court, or before the judge to which, or before whom the case is changed. For, if he appear to the action without objection, in either case the objection is waived. If, however, an error occur in the granting or refusing a change, or in improperly sustaining the jurisdiction of the court to which a case is taken, or the judge before whom the case is set, if the proper objection be made, and the proper exception taken, the error is available on appeal. But, as will more fully appear, it is necessary to save such errors usually by bill of exceptions. 1Luegerman v. Frank, 23 Ind. 320. CHAPTER VI. OF REMOVAL OF CAUSES FROM THE STATE COURTS TO THE CIRCUIT COURT OF THE UNITED STATES. § 1. Object of discussion. 2. What is proposed in discussion. 3. Acts of congress treating the subject; act of 1789, "judiciary act." 8. Cases which may be transferred. 9. When a case may be transferred, and who may transfer. 10. Character of cases may be transferred. 11. Proceedings purely probate or in rem, not embraced. 12. Construction given to the act of 1867. 14. Construction of act of 1875 in this respect. 15. When case may be transferred under act of 1867. 16. Remanding or compelling the transfer by mandamus in certain cases. 17. Where case is transferred, injunction or attachment remains. 18. Application for transfer made by verified petition. 19. Transfer on account of local prejudice. 20. Application for a transfer should be in term time. 21. Coincidence between the language of the present and former acts. 22. The rule is not changed in this respect by the act of 1877. 23. Further argument. 24. Upon filing bond and entering the order for a transfer, the clerk, on payment of fees makes the transcript. 25. Practice under former acts where court refused to transfer. 26. Remedies where a transfer is erroneously granted or refused. 27. Construction of the statute in cases enumerated in the sixth specification. §1. Object of discussion. As the transfer of cases from the state circuit or superior courts to the United States circuit court is a part of the practice in these courts, any treatise upon the practice therein would be quite incomplete if it did not give, in outline at least, both the law and the practice upon this subject. To do this, and no more, is proposed here; while the student or practitioner, who desires a more thorough examination of the sub ject, is referred to the discussion of the subject in Judge Dillon's article in the Southern Law Review; since published in pamphlet form. 1 § 2. What is proposed. It will be sufficient, therefore, for the purposes of this treatise, 1. To state the present condition of the law upon this subject, and to point out the several steps in court by which the law is carried out in practice. 83. Acts of congress treating on the subject, act of 1789"judiciary act." The constitution of the United States defines the jurisdiction of the federal judiciary. But the constitution could only be executed by the action of the federal legislature. Hence congress gave definite form to the federal judiciary, and specifically defined and limited the jurisdiction of the same by the act of 1789, usually termed the judiciary act. §4. Twelfth section of the act of 1789. The twelfth section of this act provides for the transfer of cases of which the federal circuit court would have jurisdiction, to that court, from a state court, by a defendant, who was sued in a state court. It is unnecessary to give the details of this section, as will presently appear. Suffice it to say, that the privilege was confined to the defendant, and the application must be made upon first appearance to the action. §5. Acts of congress of 1866, 1867. By the act of March, 1866, congress materially changed the provisions of the twelfth section of the judiciary act; and by the act of 1867, the act of 1789 was still further changed. §6. Judiciary act of 1875. In 1875 congress passed an act entitled "an act to determine the jurisdiction of circuit courts of the United States, and to regulate the removal of causes from state courts, and for other purposes."5 87. The effect of the act of 1875. This act greatly enlarges the jurisdiction of the federal circuit court; indeed, it seems to have been the policy of congress, not only to confer on the federal circuit court all the jurisdiction which the constitution authorized, but to reenact, with perhaps a single exception, all the provisions of the former acts concerning transfers, which were intended to 12 Southern Law Review. (315). 414 Statutes at Large, 559. Acts 1875, ch. 137. be kept in full force. And, it has been said, in effect, in a reported case, by a court of very high authority, that the act of 1875 repeals, by implication, not only the acts of 1789, but those of 1866 and 1867, in reference to the jurisdiction of the circuit court, both as to original actions and suits, and those transferred from the state courts; and except, perhaps, as to the act of 1867, this proposition is correct; for the second, third, fourth and fifth sections of the act cover the whole ground, embracing the twelfth section of the act of 1789, as well as the provisions of the act of 1866. But as to the act of 1867, the provisions of which will be considered hereafter, it seems the better opinion that it is still in force. For, as the ground of legislation embraced in that act is not covered by the act of 1875, and taking into account the language of the title of the latter act, and the fact that there are other acts of congress upon the subject of jurisdiction of the circuit court which do not relate to transfers, which are neither reenacted nor expressly repealed, and, indeed, on the subject of which the act of 1875 is wholly silent, it seems quite clear, in the absence of an express repeal, that the act of 1867 is not repealed. And, as the proposition quoted from the case in the seventh circuit was not involved in the case, it might well be regarded as obiter dictum. 8. Cases which may be transferred. It may be safely laid down, then, that the four sections of the act of 1875 already quoted, and the act of 1867, contain all the law upon the subject of transfer now in force. And under these provisions, cases pending in the state court, when suit or action has been brought, since the passage of the act of 1875, may be transferred to the circuit court of the United States, provided, they come within the following description: 1. The suit must be of a civil nature. 2. The matter in dispute, exclusive of costs, must exceed five hundred dollars. These are the two indispensable prerequisites for a transfer under the act of 1875.3 1 Osgood v. Chicago R. R. Co. Am. L. Reg. 1875, 206, 6 Biss. 330; see also, Stanley v. Chicago, etc. R. R. Co. 3 Cent. L. Jour. 430. (Sup. Court Mo.) * But see contra, and supporting the text, Judge Dillon's discussion of the question, 2 S. L. Rev. 298; Removal of Causes, p. 28, § 8; and see also, Cook v. Ford, 16 Law. Reg. N. S. 417, and cases cited, decided since this chapter was written; also, Barber v. Railway Co. 43 Iowa, 223; New Jersey Zinc Company v. Trotter, 17. Am. Law Register, 376. Acts 1875, supra, § 2. |