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courts, were repealed by the Act of March 3, 1870, 18 Stat. 470,
but subsection "Third" was not so repealed.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
MR. JUSTICE WAITE delivered the opinion of the Court.
Subsections 1 and 2 of § 639 were repealed by the act of
1875,
Hyde v. Ruble, 104 U. S. 407;
King v. Cornell, 106 U. S. 395,
106 U. S. 398;
Holland v. Chambers, 110 U. S. 59;
Ayres v. Watson, 113 U. S. 594; but
subsection 3 was not,
Bible Society v. Grove, 101 U.
S. 610;
Hess v. Reynolds, 113 U. S.
73,
113 U. S. 80.
Under subsection 3, the petition for removal may be filed at any
time before the final trial or hearing.
Insurance
Co. v. Dunn, 19 Wall. 214;
Vannevar v.
Bryant, 21 Wall. 41;
Yulee v. Vose,
99 U. S. 539,
99 U. S. 545;
Railroad Co. v. McKinley, 99 U. S.
147. This petition was filed after a new trial had
actually been granted and while the cause was pending in the trial
court for that purpose. It was therefore in time, and no objection
is made to its form.
As subsection 3 has not been repealed, so much of the remainder
of § 639 as is necessary to carry the provisions of that
subsection into effect remains in force unless something else has
been put in its place. It is not contended that anything of this
kind has been done unless it be by the operation of § 3 of the
act of 1875, but that section, by its very terms, is only
applicable to removals under § 2 of the same act. The language
is "that whenever either party, or any one or more of the
plaintiffs or defendants entitled to remove any suit mentioned in
the next preceding section" -- that is to say, § 2 of the act
of 1875 -- "shall desire to remove such suit," he shall petition
and give security in the manner and form therein prescribed.
Clearly, then, this section relates only to removals provided
Page 119 U. S. 468
for in that act, and, as subsection 3 of § 639 remains in
force, because the cases there provided for are not included among
those mentioned in the act of 1875, it follows that the form and
mode of proceeding to secure a removal under the subsection will be
sufficient if they conform to the requirements of the other parts
of the section. That section, as it now stands, unrepealed, is
complete in itself, and furnishes its own machinery to effect a
removal of all cases which come within its operation. The security
is as much governed by the remainder of the section as the time for
filing the petition, and, as to that, it was distinctly held in
Hess v. Reynolds, supra, that the petition was in time if
presented before the final trial, even though it was after the term
at which the cause could have been first tried, which would be too
late if § 3 of the act of 1875 was applicable to this class of
cases. As to this, the court said in that case:
"We are of opinion that this clause of § 639 remains, and
is complete in itself, furnishing its own peculiar cause of removal
and prescribing, for reasons appropriate to it, the time within
which it must be done."
It is true this suit is between citizens of different states,
and, as such, it is mentioned in § 2 of the act of 1875; but
the fair meaning of § 3 is that the suit must be one that is
removable simply for the reason that it is one of a class such as
is mentioned in § 2. Some cases in the circuit courts have
been ruled the other way, and the decision of the Supreme Court of
Ohio was put largely on their authority; but they were all decided
before
Hess v. Reynolds, supra, in this Court, and that
case, as we think, substantially covers this.
The judgment of the Supreme Court of Ohio is reversed, and
the cause remanded for further proceedings in accordance with this
opinion.
