Metropolitan Life Insurance v. Ethier ( 1880 )

Cooley, J.

Two verdicts have been recovered by defendant in error in this case, the first of which we set aside and ordered a new trial. The second, with the judgment upon it, is now before us. It is alleged for error that the circuit court erred in proceeding to a second trial in the case, because before doing so a petition had been filed for the removal of the ease to the circuit court of the United States, whereby the jurisdiction of the State court was superseded. On th$ other hand, it is insisted that there were fatal defects in the proceedings to remove the case to the Federal court, which required and compelled the court helow to overrule the petition. No other question but this is now before us.

An inspection of the record shows that the order of this court, setting aside the first verdict and judgment, was made June 13, 1876. The remittitur was applied for and issued August 29, 1876, but for some unexplained reason was not filed in the court below until September 1, 1877. The petition for the removal of the cause is dated September 7, 1876, and the affidavit on which it was based, was made on that day. Ila d it been immediately presented, it must have been denied without an examination of its merits. This is settled by Vannevar v. Bryant 21 Wall. 41 and Railroad Co. v. MocKinley 99 U. S. 147, in which it was decided that a party cannot move for the transfer of his case to the Federal court for a second trial until his right to have a second trial has been perfected, and this is not done until remittitur is filed.

The petition, however, was not presented to the State court for its consideration until September 21, 1877, more than a year after its date, and the bond was not perfected until September 15, 1877. And the question now is, whether a showing made at a time when the case is not in condition for moving can he retained in the office of counsel and made use of a year or any indefinite time afterwards when the necessary steps shall have been taken to put the case in the proper condition.

The ground on which the transfer was demanded was that “from prejudice and local influence the said Metropolitan Life Insurance Company of New York, the defendant in said cause, will not be able to obtain justice in the State court, where the same is now pending.” The showing of cause was upon belief merely, as it must be usually, since the nature of the case will scarcely admit of more. Now nothing can be more evident than that a cause which may have prejudiced a fair trial in September, 1876, may have wholly passed away in September, 1877, or that a showing made in the most perfect good faith and on grounds apparently sufficient at the first date, may, long before the year was over, have been shown, to the satisfaction of the party making it, entirely mistaken and baseless. Indeed it is possible to conceive that stale papers may have been used because new papers could not be verified; for local feelings and prejudices change frequently, and a prejudice against one party at one date may be equally strong in his favor in much less time than had elapsed in this case. Courts must- often take notice of such changes; a railroad company may have a whole community ready to tax their estates to aid in the spring, and equally ready to tear up its track in the fall, and an accused party when he has been convicted may have the same persons petitioning for his pardon who strove as a mob to hang him when first arrested. Such changes are too common to be ignored in legislation, and those not so striking in character are often sufficient to affect the general sentiment of a community without attracting much attention. We have no doubt that the intention of the statute permitting such transfers is that the showing of cause and the motion upon it should be substantially contemporaneous. We will not undertake to say what lapse of time after the one and before the other would be overlooked, but it is plain that after a year the showing has lost its force and cannot avail to move the judicial mind.

As this is the sole error relied upon, the judgment must be affirmed with costs.

The other Justices concurred.