Lewis v. Smythe

15 F. Cas. 499, 2 Woods 117

• Court: U.S. Circuit Court for the District of Louisiana
• Decided: November 15, 1875
• Status: Published

Opinion

WOODS, Circuit Judge.

The act of congress, prescribing how causes may be removed from the state to the federal courts (18 Stat 470), declares: Sec. 3. 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, shall desire to remove such suit from a state court to the circuit court of the United States, he or they may make and file.a petition in such suit in such state court, before or at the term at which said cause could be first tried, and before the trial thereof for the removal of such suit into the circuit court.” By the word “trial,” as used in this statute, I do not understand the argument, investigation or decision of a question of law merely, unless it is decisive of the case, and the decision results in a final judgment or decree. The decision of the court on a demurrer, for instance, or on exceptions to the sufficiency of a plea, which is followed by amendments or new pleadings, and which does not end the ease, is not the trial meant by the statute. Blackstone defines a trial to be “the examination of the matter of fact in issue in a cause.” 4 Black, Comm. 322. See, also, 2 Hale, P. C. p. 216, c. 28. “A trial has been held to be the examination before a competent tribunal, according to the laws of the land, of the facts put in issue in a cause, for the purpose of determining such issue.” U. S. v. Curtis [Case No. 14,905]. So in Steph. PI. append, note 29, it is said: “The word ‘trial’ has long been used to express the investigation and decision of fact only.” No argument or decision of questions merely preliminary, or questions of pleading, except such as settle and end the case (as where the facts are admitted and the case turns upon the law as applied to the facts) is meant by the word “trial.” It involves the facts of the case, and whenever the investigation of the facts of a case simply, or the facts in connection with the law is entered upon by the court alone, or by the court and jury, the trial may be said to have begun.

It seems to me too clear to admit of argument that the petition for removal must be filed before the trial commences. The filing of such a petition during the trial, while it is in progress, is not a filing before the trial. To hold otherwise, would be to allow a party to experiment with the court, by going into the trial, and if the rulings of the court were not favorable or the prospects for a propitious result good, to interrupt the proceedings by a transfer of the cause to another forum. Some cases occupy several weeks in their trial. It could hardly be in the contemplation of the act of congress to allow a party, after he has occupied the attention of the court or the court and jury for days, and it may be weeks, with the trial of a cause, to interrupt the proceedings by a transfer of the cause to another court. And yet this would be the effect of the construction claimed by counsel for complainants, namely, that the words “before the trial thereof” mean before the trial is completed and ended. In my judgment, the petition and bond for removal must be filed “before or at the term at which the cause could be first tried, and before the trial thereof” commences. As the petition and bond for the removal of this case were not filed until after the parties had entered upon the trial, and until after the pleadings had been read and the evidence submitted to the court, they .were not filed in compliance with the statute, and they were not effectual to remove the case out of the state court, or to interfere with its jurisdiction to proceed therewith. The judgment of the state court is therefore valid until reversed in a direct proceeding. The motion for the injunction must be overruled. Whether, if the case had been properly removed, this court could grant the relief prayed by the bill, I will not now undertake to decide.