Railroad Co. v. Cummins

8 Watts 450

• Court: Supreme Court of Pennsylvania
• Decided: July 15, 1839
• Status: Published

Opinion

Per Curiam.

There was no question of the jurisdiction to the time when the counsel called for a removal of the cause; and an admission of what the defendant was not called upon to contest, could not prejudice the right of removal. The legislature have not limited it in point of time; and shall the court limit it? The defendant has performed the only cortdition prescribed by the legislature; and shall the court prescribe another? Every practitioner in the time of the circuit courts, must remember to have seen instances of removal, to escape a trial without preparation, the instant the book was sent into the jury-box. The practice was common, when each party, secretly desiring to outbrag the other by professions of readiness, held out till one of them fled the field with the cause into the circuit court. Yet the court below, being bound by the mandate of the writ, never thought the party had forfeited his right by procrastination. In this case the removal is without writ; but the right is the same, for the law is quite as imperative. As the other points on the record were coram non judice, we forbear to express an opinion on them.

Judgment reversed, and the cause remitted for trial to the common pleas of Luzerne county.