BALTIMORE & O. R. Co. v. BATES.

119 U.S. 464 (7 S.Ct. 285, 30 L.Ed. 436)

BALTIMORE & O. R. Co. v. BATES.

Decided: December 13, 1886

This suit was brought in the court of common pleas of Licking county, Ohio, on the first of July, 1875, by George Bates, a citizen of Ohio, against the Baltimore & Ohio Railroad Company, a Maryland corporation, and having its principal office in that state, to recover damages for personal injuries. The railroad company filed a general demurrer to the petition on the twentieth of September, 1876, and on the seventh of April, 1877, this demurrer was sustained, and judgment entered in favor of the company. On the seventh of July, 1877, this judgment was reversed by the district court of the county, and the cause remanded to the common pleas for further proceedings. When the case got back, the railroad company filed a petition for removal to the circuit court of the United States for the Southern district of Ohio, under subsection 3 of section 639 of the Revised Statutes, on the ground of prejudice and local influence. The petition was in proper form, and it was accompanied by the necessary affidavit; but the security was such as was prescribed by section 639 of the Revised Statutes, and not such as was required by section 3 of the act of March 3, 1875, (chapter 137, 18 St. pt. 3, 470.) The act of 1875 requires security for 'all costs that may be awarded by the said circuit court, if the said court shall hold that such suit was wrongfully or improperly removed thereto.' This is not found in section 639.

The petition for removal was denied by the court of common pleas December 22, 1877, and thereupon the railroad company answered, and the parties went to a trial May 23, 1878, when a judgment was rendered against the company. The case was taken then, on petition in error, to the district court of the county, because, among others, the court erred in denying the petition for removal. On the twenty-eighth of February, 1880, the district court reversed the judgment for this error, and the case was then taken to the supreme court of the state, where the judgment of the district court was reversed, and that of the common pleas affirmed, on the fifteenth of May, 1883; that court holding that the security was defective, because it was not such as the act of 1875 required. To reverse that judgment this writ of error was brought.

John K. Cowen and Hugh L. Bond, Jr., for plain iff in error.

Gibson Atherton, for defendant in error.

Argument of Counsel from pages 465-467 intentionally omitted

WAITE, C. J.

Subsections 1 and 2 of section 639 were repealed by the act of 1875, (Hyde v. Ruble, 104 U. S. 407; King v. Cornell, 106 U. S. 395, 398; S. C. 1 Sup. Ct. Rep. 312; Holland v. Chambers, 110 U. S. 59; S. C. 3 Sup. Ct. Rep. 427; Ayres v. Watson, 113 U. S. 594; S. C. 5 Sup. Ct. Rep. 641;) but subsection 3 was not, (Bible Soc. v. Grove, 101 U. S. 610; Hess v. Reynolds, 113 U. S. 73, 80; S. C. 5 Sup. Ct. Rep. 377.) Under subsection 3, the petition for removal may be filed at any time before the final trial or hearing. Insurance Co. v. Dunn, 19 Wall. 214; Vannevar v. Bryant, 21 Wall. 41; Yulee v. Vose, 99 U. S. 545; Railroad Co. v. McKinley, Id. 147. This petition was filed after a new trial had actually been granted, and while the cause was pending in the trial court for that purpose. It was therefore in time, and no objection is made to its form.

As subsection 3 has not been repealed, so much of the remainder of section 639 as is necessary to carry the provisions of that subsection into effect remains in force, unless something else has been put in its place. It is not contended that anything of this kind has been done, unless it be by the operation of section 3 of the act of 1875; but that section, by its very terms, is only applicable to removals under section 2 of the same act. The language is '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,' that is to say, section 2 of the act of 1875, 'shall desire to remove such suit,' he shall p tition and give security in the manner and form therein prescribed. Clearly, then, this section relates only to removals provided for in that act; and, as subsection 3 of section 639 remains in force, because the cases there provided for are not included among those mentioned in the act of 1875, it follows that the from and mode of proceeding to secure a removal under the subsection will be sufficient if they conform to the requirements of the other parts of the section. That section, as it now stands, unrepealed, is complete in itself, and furnishes its own machinery to effect a removal of all cases which come within its operation. The security is as much governed by the remainder of the section as the time for filing the petition; and, as to that, it was distinctly held in Hess v. Reynolds, supra, that the petition was in time if presented before the final trial, even though it was after the term at which the cause could have been first tried, which would be too late if section 3 of the act of 1875 was applicable to this class of cases. As to this the court said in that case: 'We are of opinion that this clause of section 639 remains, and is complete in itself, furnishing its own peculiar cause of removal, and prescribing, for reasons appropriate to it, the time within which it must be done.'

It is true, this suit is between citizens of different states, and, as such, it is mentioned in section 2 of the act of 1875; but the fair meaning of section 3 is that the suit must be one that is removable simply for the reason that it is one of a class such as is mentioned in section 2. Some cases in the circuit courts have been ruled the other way, and the decision of the supreme court of Ohio was put largely on their authority; but they were all decided before Hess v. Reynolds, supra, in this court, and that case, as we think, substantially covers this.

The judgment of the supreme court of Ohio is reversed, and the cause remanded for further proceedings in accordance with this opinion.

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