Pullman Palace Car Co v. Speck

• Decision Date: 05 January 1885
• Citation: 5 S.Ct. 374,28 L.Ed. 925,113 U.S. 84
• Parties: PULLMAN PALACE CAR CO. and others v. SPECK and others
• Court: U.S. Supreme Court

113 U.S. 84

5 S.Ct. 374

28 L.Ed. 925

PULLMAN PALACE CAR CO. and others v. SPECK and others.

January 5, 1885.

Huntington W. Jackson and Edward S. Isham, for appellants.

A. M. Pence, for appellees.

MILLER, J.

This is an appeal from an order of the circuit court for the Northern district of Illinois, remanding to the state court a case which had been removed from that into the circuit court. The removal was prayed for in the petition, on the ground that the controversy was between aliens and citizens of the state of Illinois, and one of the points argued before us is that other parties to the suit, with interest opposed to that of the appellants, at whose instance the removal was made, are citizens also of Illinois, and for that reason the suit was not removable. But we do not pass on this point, because we are of opinion that the application for removal came too late. The act of March 3, 1875, under which this removal was asked, requires of the party seeking it that 'he or they make and file a petition in such suit, in such state court, before or at the term at which such cause could be first tried, and before the trial thereof for the removal of such suit into the circuit court.'

Under the act of 1789, § 12, (1 St. 79,) the right of removal could only be exercised by a defendant in a court of a state of which he was not a citizen, and he was required to make his application for the removal at the time of entering his appearance. The reasons for this were obviously that the plaintiff, who had selected the state court as his forum, should not be permitted to change it after calling his adversary there, and that the defendant, who had a right of removal, and failed to exercise it at the earliest period possible, should be presumed to have acquiesced in the forum chosen by the plaintiff. The law remained in this condition until an act of congress of July 27, 1866, authorized an alien or citizen of a state other than that in which the suit is brought, to remove the cause, though there be other defendants who are citizens of that state, when there can be a final determination of the controversy, so far as he is concerned, without the presence of the other defendants. In this class of cases the petition for removal could be filed at any time before the trial or final hearing of the cause. 14 St. 306. An act to amend this act, approved March 2, 1867, authorized either plaintiff or defendant in a state court, when they were citizens of different states, to remove the suit on account of prejudice or local influence into the circuit court of the United States, if he filed in the state court an affidavit of the existence of this cause of removal, at any time before the final hearing or trial of the suit. These latter acts do not speak of terms of the courts, or of the appearance of the moving party; but, using the words 'hearing' and 'trial' in their appropriate sense of a hearing in chancery and a trial at law, permit the removal at any time before the hearing or the trial is begun. Removal Cases, 100 U. S. 457.

The act of 1875, which governs the case before us, while superseding by its general provisions nearly all the removal statutes, prescribes a rule which is neither so stringent as the act of 1789, nor so lax as those of 1866 and 1867. While the party who has a case for removal is not put to his election to exercise or abandon the right to remove at the moment of entering his appearance, he is not permitted unreasonably to delay this election during all the period incident to the preparation of the case, until both parties find themselves in condition to go to trial at law, or are ready for a hearing in chancery. The later act clearly requires more diligence in making the election than this. If it had intended to enact that the removing party had until the case was ready for trial on both sides, or was fully at issue, or was noticed or set down for trial, it would have been easy to indicate this in words. The language, however, which was adopted means a very different thing. It is not the time when the case stands ready for trial on the calendar, but the term at which it could be first tried. Not the term at which the...