88 U.S. 41 | SCOTUS | 1874
VANNEVAR
v.
BRYANT.
Supreme Court of United States.
*42 Mr. R.M. Morse, Jr., for the plaintiff in error; Mr. C.R. Train, contra.
*43 The CHIEF JUSTICE delivered the opinion of the court.
In the case of the Sewing Machine Companies,[*] it was held that an action upon a contract by a plaintiff, who was a citizen of the State in which the suit was brought, against two defendants, who were citizens of other States, and a third who was a citizen of the same State as the plaintiff, was not removable to the Circuit Court under this act upon the petition of the two non-resident defendants. Without considering the question whether, in an action of tort by a resident plaintiff, a non-resident defendant can, at a proper stage of the proceedings and upon proper showing, remove the cause as against himself, to the Circuit Court, under the act of 27th July, 1866,[] we are clearly of the opinion that this case comes within the principle settled in that of the Sewing Machine Companies. The petition was filed under the act of 1867, for a removal of the suit, and not, under the act of 1866, for its removal as against the non-resident defendants.
The transfer was also properly refused for another reason. The act authorizes the petition for removal to be filed "at any time before the final hearing or trial of the suit." The hearing or trial, here referred to, is the examination of the facts in issue. Hearing applies to suits in chancery and trial to actions at law. In Insurance Company v. Dunn,[] it was held, that after a motion for a new trial had been granted, a removal might be had. But after one trial the right to a second must be perfected before a demand for the transfer can properly be made. Every trial of a cause is final until, in some form, it has been vacated. Causes cannot be removed to the Circuit Court for a review of the action of the State court, but only for trial. The Circuit Court cannot, after one trial in a State court, determine whether there shall be another. That is for the State court. To authorize the removal, the action must, at the time of the application, be actually pending for trial. Such was not the case here.
JUDGMENT AFFIRMED.
NOTES
[*] 18 Wallace, 553.
[] 14 Stat. at Large, 306. See the act, supra, p. 36. REP.
[] 19 Wallace, 214.