MeLean v. The St. Paul and Chicago Railway Company.

no ground upon which to grant a new trial, or to arrest the judgment. The motions are, therefore, denied.

Sutherland Tenney, (Assistant District Attorney,) for the

United States.

A. J. Dittenhoefer, for the defendant.

SAMUEL MCLEAN

vs.

THE ST. PAUL AND CHICAGO RAILWAY COMPANY.

On March 17th, the State Court in which this suit was pending made an order, on the petition of the defendant, that it be removed into this Court. The defendant ought to have filed the record in this Court by April 7th. It was not filed till April 10th. This Court, on May 24th, made an order remanding the cause. June 2d, on a new petition filed that day by the defendant, which set forth that the suit was then pending in the State Court, that Court made an order that the suit be removed into this Court: Held,

(1.) That, as the removal was provided for by §§ 2 and 3 of the Act of March 3d, 1875, (18 U. S. Stat. at Large, 470, 471,) the petition was in time if filed before or at the term at which the cause "could be first tried, and before the trial thereof;"

(2.) That the publication of the second edition of the Revised Statutes, under the Act of March 2d, 1877, (19 U. S. Stat. at Large, 268,) did not re-instate subdivision 1 of § 659 of the Revised Statutes, as applicable to this suit; (3.) That the proper condition of the bond on removal was that prescribed by $3 of the Act of 1875;

(4.) That the petition of June 2d was filed before or at the term at which the cause could be first tried;

(5.) That, as the defendant had once removed the cause to this Court and had failed, by neglect, to perfect the removal, and the cause had been remanded for that reason, the right to remove it had been waived and lost;

(6.) That the defendant could not now be allowed to furnish an excuse for not having in time filed the record on the first removal, and that it had acquiesced

McLean v. The St. Paul and Chicago Railway Company.

in the first remand by averring, in the second petition, that the cause was then pending in the State Court.

(Before BLATCHFORD, J., Southern District of New York, December 22d, 1879.)

BLATCHFORD, J. A petition by the defendant and a bond for the removal of this suit into this Court were filed in the State Court in which the suit was pending, on the 17th of March, 1879, and on that day the State Court made an order that the petition and bond be accepted and filed, "and that this Court will proceed no further in this suit, and it is hereby declared that the said suit is removed to the said Circuit Court of the United States for the Southern District of New York." The defendant ought to have filed a copy of the record in this Court by the 7th of April, but did not until the 10th of April. For that cause, this Court made an order, on the 24th of May, on motion of the plaintiff, remanding the cause of the State Court. (16 Blatchf. C. C. R., 309.) On the 2d of June, 1879, the defendant filed in the State Court a petition and bond for the removal of the cause into this Court, and the State Court made an order, on that day, that said petition and bond be accepted, and "that this Court will proceed no further in this suit, the said suit being removed to the said Circuit Court of the United States for the Southern District of New York." A copy of the record in the suit having been filed in this Court in due time by the defendant, and the defendant having appeared in the suit in this Court, the plaintiff now moves, on various grounds, to remand the cause to the State Court.

It is contended, that, under subdivision one of section 639 of the Revised Statutes of the United States, the petition for removal in this case should have been filed in the State Court at the time the appearance of the defendant was entered in the State Court. This is on the idea that such subdivision was in force, as respects this suit. But, as the removal of this case is provided for by sections 2 and 3 of the Act of March 3d, 1875, (18 U. S. Stat. at Large, 470, 471,) those sections supersede, and take the place of, in regard to this suit, such

McLean v. The St. Paul and Chicago Railway Company.

subdivision. Under the Act of 1875 the petition was in time if filed before or at the term at which the cause 'could be first tried, and before the trial thereof." It is suggested, for the plaintiff, that the second edition of the Revised Statutes, printed and promulgated in 1878, is a re-enactment of the Revised Statutes in 1878, and that subdivision one of section 639, found in it, displaces the Act of 1875. This is an error. The Revised Statutes were enacted June 22d, 1874. The new or second edition authorized by the Act of March 2d, 1877, (19 U. S. Stat. at Large, 268,) is the Revised Statutes as enacted June 22d, 1874, with all amendments made between December 1st, 1873, and March 4th, 1877. By section 5,601 of the Revised Statutes, all Acts passed after December 1st, 1873, are left in force as if passed after June 22d, 1874. The publication of the second edition of the Revised Statutes does not affect any statute passed subsequently to December 1st, 1873. It does not affect the Act of March 3d, 1875, nor re-instate subdivision one of section 639, as applicable to this suit.

It is urged, that the bond in this case is not the proper bond, because its condition was not that provided for by section 639 of the Revised Statutes, but that provided for by section 3 of the Act of 1875. As the suit is one mentioned in section 2 of that Act, the proper condition of the bond was that prescribed by section 3 of that Act.

It is further urged, that the petition filed June 2d, 1879, was not filed before or at the term at which the cause "could be first tried" in the State Court, although filed before the trial of the cause in that Court. Issue was joined in the suit, by the answer of the defendant in the State Court, February 27th, 1879. The order of removal made by the State Court March 17th, 1879, states that the petition for removal that day filed is filed "before the term at which this cause could be first tried in this Court." This is an adjudication of that fact by the State Court. Even if such an adjudication would be reviewed by this Court, it is apparent, that the cause could not have been tried before the March Term, 1879, of the State

McLean v. The St. Paul and Chicago Railway Company.

Court, and at that term the petition was filed. It is plain, from sections 977 and 980 of the Code of New York, that the cause could not have been noticed for trial, or put on the calendar of the State Court, for the March Term, or regularly brought to trial at that term, except by consent. The term at which the cause "could be first tried " is the term at which, under the legislation of the State and the rules of practice pursuant thereto, the cause is first triable, that is, subject to be tried on its merits. (Dillon on Removal of Causes, 2d ed., p. 57; Ames v. Colorado Central R. R. Co., 4 Dillon, 260; Fulton v. Golden, 20 Albany Law Journal, 229.) On the 17th of March, 1879, the State Court declared, by the order of that date, that it would proceed no further in the suit and that the suit was removed to this Court. This was equivalent to saying it would not try the cause. This state of things continued until this Court, by its order of May 24th, remanded the cause to the State Court. Then, under the State legisla ture and practice, the term at which the cause could be first. tried was the June Term, and at or before that term the new petition for removal was filed. So far therefore, as the question of time is concerned, the new petition was filed in time, under the Act of 1875.

It is further urged that, the defendant having once removed the cause to this Court, and having failed to perfect the removal by neglect to file the record in time in this Court, and the cause having been remanded to the State Court for that reason, the right to remove the cause has been lost, because the delay is prejudicial to the plaintiff; and that, if the right to remove is to be allowed in this case, under such circumstances, the same course might be repeated ad infinitum. That a defendant may waive his right to remove a cause is plain. (Hanover Nat. Bank v. Smith, 13 Blatchf. C. C. R., 224.) He ought to be held to have waived it where he has attempted to exercise it once, and has failed, by neglect, to perfect the removal, and where, to allow the subsequent removal, would make effective the delay of the cause, to the presumed prejudice of the plaintiff, for the time elapsed after

McLean v. The St. Paul and Chicago Railway Company.

the failure to perfect the removal occurred. That is the pre

sent case.

The defendant calls attention to the recent decision of the Supreme Court in Meyer v. Construction Co., (10 Otto, 457,) and claims that, under that decision, this cause ought not to have been remanded before, and, therefore, ought to be retained here now. The Supreme Court, in that case, says, that it does not appear, by the statute, that the Circuit Court is to be deprived of its jurisdiction, if "by accident" the party is delayed until a later day than the first day of the term of the Circuit Court, in filing a copy of the record of the State Court; and that, if the Circuit Court, for good cause shown, accepts the transfer after the day and during the term, its jurisdiction will, as a general rule, be complete and the removal properly effected. The affidavit of the defendant's attorney, furnished to the Court on the first motion to remand, purporting to give an excuse in this case for not filing the copy of the record, on the first removal, on the first day of the April Term, and to make out a case of “accident," contained the following on that subject and nothing more: " and deponent says, that, by inadvertence, during his, deponent's, absence from his office on the 7th April, instant, the record, in said cause, of the said proceeding, in the Court of Common Pleas of the city and county of New York, in the said action, and a copy of the pleadings therein, was not filed in the Court on that day, and that deponent did not discover that the same had not been filed until the 10th instant." This affidavit does not make out a case of accident. Facts are not stated from which the Court can see that there was an inadvertence or an accident. The conclusion of inadvertence is sworn to. The certified copy of the petition for removal, bond, and order of removal, filed in this Court on the 10th of April, was certified by the clerk of the State Court on the 18th of March. No reason is shown why it was not filed here before the 7th of April, as it might have been. This Court did not accept the transfer, but remanded the cause. It did so on what then appeared, and still appears, to a proper ground. This Court could not now vacate the

be