7 F. Cas. 1 | U.S. Circuit Court for the District of Southern New York | 1872
This case was, I think, properly removable to this court, as against the defendant McKinney, under the act of July 27, 1866 (14 Stat 306).' The right of removal is given “at any time, before the trial or final hearing of the cause,”; not “at, any time before a trial or final hearing of the cause.” The judgment which the' state court rendered in favor of the plaintiffs, on the report of the referee, on the trial which was had, was reversed, and a new trial was granted. The state court, in its decision granting the removal of this cause, as against McKinney, says, that the former trial was adjudged a mistrial, and that the case now stands for trial, as if no former trial ’ had occurred.. This being so, the case was a removable one, under the .-act of 1866,. as against McKinney. The motion to remand it must, therefore, be denied.
The order that the cause “proceed in this court, the same as if it had been originally, brought herein,” ought to be modified, so as to provide, that the cause proceed in this court, against McKinney, in the same manner as if it had been brought in this .court by original process against McKinney.
By the act of 1866, the copies of all pleadings in the state court, filed or entered by] McKinney in this court, have the same force; and effect, in every respect, and for every purpose, as the original pleadings.would have had, by the laws and practice of the state court, if the cause, as against McKinney, had remained in such state court There is,, therefore, no need of any new pleadings in this court, provided they are in a proper, shape for a trial as between the plaintiffs and McKinney. I think they are in such shape. The motion to set aside the rule to declare is, therefore, granted.