11 R.I. 36 | R.I. | 1874
This action has been once tried before a jury in this court and the jury disagreed. The defendants now file a motion, with the proper papers, to remove the cause to the United States Circuit Court, under the acts of Congress of July 27, 1866, and the amendatory act of March 2, 1867. 14 U.S. Statutes at Large, 306, 558.
The plaintiff opposes the motion on the ground that the cause cannot be removed under the acts of Congress, as a trial has taken place in the state court.
The act of 1866 provides for removal of a suit at any time before the trial or final hearing. The act of 1867 varies the language somewhat, and provides for removal at any time before the final hearing or trial.
We have been referred to the recent decision of the Supreme Court of Massachusetts, in the case of Galpin v. Critchlow,
With the policy of the acts of Congress, we, as a court, whatever our individual opinions may be, have nothing to do. Their *37 effect, no doubt, is to carry into the United States courts a great mass of litigation which would otherwise remain in the state courts. The act of 1867 has been decided not to be unconstitutional by the United States Supreme Court, in 1872, in the case of the Railway Company v. Whitton's Administrator, 13 Wall. 270. See, also, Fields v. Lamb, Deady, 430.
Upon the construction of the act we must, however, decide. This, indeed, seems to be a mere form on our part, as in two cases, Hazard et al. v. Durant et als.
It might be desirable that some mode should be provided by which questions relating to the construction of these acts, involving possible conflict of jurisdiction, might, even before a trial upon the merits of a case, be taken to the United States Supreme Court for their decision. Congress, however, has made no provision for it. In one case, indeed, where the state court refused the removal, and proceeded immediately to trial, the suit was removed to the United States Supreme Court by writ of error.2
Our conclusion is, that an order should be entered that this court will proceed no further in the cause. And we are clearly of opinion that the amendments made to the declaration should be considered as made of the time when the declaration was filed. But if the cause is to be removed it should be removed as of the date when the motion for removal was made; and the papers should be certified as they were at that date.
