New York Warehouse & Security Co. v. Loomis , 122 Mass. 431 ( 1877 )

Gray, C. J.

A petition for the removal of a cause «from a state court into a Circuit Court of the United States must, by the terms of the act of Congress of March 3, 1875, § 3, be filed “ before or at the term at which said cause could be first tried, and before the trial.” The manifest purpose and effect of this enactment are that a party, who intends to remove a case from a state court into a federal court for trial, shall' do so, not only before trial in the state court, but at the first term at which a case is at issue for trial and might be ordered to be tried there.

By our practice act, an action at law is deemed at issue as soon as an answer is filed, and no further pleading is required, except by order of the court. Gen. Sts. e. 129, §§ 23, 28. Cases may be, and often are, tried at the first term at which they are entered. And the rule of this court, which requires that at each term for the trial of cases by a jury, a trial list shall be prepared on the first day of the sitting of the court, allows any case to be placed upon the list afterwards by order of the court. Rule 22, 104 Mass. 563. The present case was therefore at issue, and could by the law and practice of this Commonwealth have been tried, at April term 1875, at September term 1875, or at April term 1876; and this petition for removal, filed at September term 1876, comes too late.

Our interpretation of the act of Congress is supported by the opinions of three federal judges of much experience: Mr. Justice Davis of the Supreme Court, and Judges Drummond and Dillon of the Circuit Courts for the seventh and eighth circuits. Dillon on Removal of Causes, 58, note. Scott v. Clinton & Springfield Railroad, 6 Bissell, 529, 536. Ames v. Colorado Central Railroad, 4 Centr. L. J. 199.

Petition for removal denied.