Murray v. Holden
| Decision Date | 01 June 1880 |
| Citation | 2 F. 740 |
| Parties | MURRAY v. HOLDEN and others. |
| Court | U.S. District Court — Western District of Missouri |
Comingo & Slover, for plaintiff.
Karnes & Ess, Tichenor & Warner, Gage & Ladd and Brumback, Ferry & Black, for defendants.
The statute of 1875 requires that the petition in the state court for removal shall be filed 'before or at the term at which such cause could be first tried, and before the trial thereof. ' This language has been frequently construed by the circuit courts of the United States, but, unfortunately these courts do not agree as to its meaning. It is impossible to harmonize the conflicting decisions on the subject. In this circuit, according to Judge Dillon's statement in his work on 'Removal of Causes,' the term referred to is 'the term at which, under the legislation of the state, and the rules of practice pursuant thereto, the cause is first triable-- i.e., subject to be tried on its merits-- not necessarily the term when, owing to press of business or arrearages, it may be first reached in its order for actual trial.'
I think the practice in this circuit has been uniformly in accordance with the rule here stated, and it must be regarded as well settled. I am disposed to adhere to it, not only because it is the rule heretofore adopted and followed, but also because I consider it a correct exposition of the statute. One of the objects of the act of 1875 was to prevent the abuses which had been practiced under the acts of 1866 and 1867, which allowed a removal at any time before the final hearing. It was evidently the purpose of congress to fix an earlier and a definite time, which would not permit the litigant to experiment in the state court until satisfied that he would fail there, and then change his forum. In all the states there is, by law or rule, a trial term-- i.e., a term at which a cause may for the first time be called for trial. In practice but few contested cases are tried at the first trial term, and it often happens that controversies arise upon questions of pleading-- so that, as in this case, no issues of fact are joined at that term. It is, nevertheless, the term at which, within the meaning of the law, such cases could first be tried, and, therefore, is the term at or before which the petition for removal must be filed. The statute does not contemplate any delay for the purpose of settling the pleadings in the state court. These can be settled in the ...
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Hager v. New York Oil Co.
...by Judge Reed upon the authority of Pullman's Palace-Car Co. v. Speck, 113 U. S. 84, 5 S. Ct. 374, 28 L. Ed. 925, approving Murray v. Holden et al. (C. C.) 2 F. 740, as to the meaning of the expression in section 29: "At the time, or any time before the defendant is required by the laws of ......
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Amy v. Manning
... ... which have been practiced under the acts of 1866 and 1867, ... which allowed a removal at any time before the final ... hearing." Murray v. Holden, 1 McCrary, 341, 2 ... F. 740; Pullman Palace Car Co. v. Speck, supra ... The ... defendant, in effect, filed an ... ...
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Wilson v. Big Joe Block Coal Co.
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Aldrich v. Crouch
...the state court. Bible Society v. Grove, 101 U.S. 610; Babbitt v. Clark, 103 U.S. 606; Gurnee v. County of Brunswick, 1 Hughes, 270; Murray v. Holden, 1 McCrary, 341; (S.C. 2 F. Forrest v. Keeler, 17 Blatchf. 522; Kerting v. American Oleograph Co., ante, 17. NOTE. The act of 1875 requires t......