Whitehouse v. Continental Fire Ins. Co.

• Decision Date: 18 May 1880
• Court: U.S. District Court — Eastern District of Pennsylvania
• Parties: WHITEHOUSE, Assignee, v. THE CONTINENTAL FIRE INS. CO. [1] SAME v. THE COM. FIRE INS. CO. SAME v. THE MANHATTAN FIRE INS. CO.

2 F. 498

WHITEHOUSE, Assignee, v. THE CONTINENTAL FIRE INS. CO. ^[1]

SAME v. THE COM. FIRE INS. CO.

SAME v. THE MANHATTAN FIRE INS. CO.

United States Circuit Court, E.D. Pennsylvania.

May 18, 1880

Hon. J B. Reilly, for plaintiff.

G. R. &amp S. H. Kaercher and E. D. Smith, for defendants.

These were rules to remand causes to the state court.

The record showed that the above suits were commenced in the court of common pleas of Schuylkill county, Pennsylvania, on September 5, 1874. Defendants appeared by counsel, but no declaration was filed, or any further proceedings taken until November 17, 1879, when defendants filed petitions for the removal of the causes to the United States circuit court. The petitions set forth that the matters in dispute in each case exceeded $500; that the controversy was between citizens of different states, the plaintiff being a citizen of Pennsylvania, and the defendant being corporations organized under the laws of New York, and having their principal offices in the city of New York; and that petitioners believed that, from prejudice and local influence, justice could not be obtained in the state court. The petitions were accompanied with the usual bonds to remove the record to the United States court, and the record was filed in the circuit court at the first term after the filing of the petitions.

BUTLER D.J.

The rules taken must be dismissed. The act of March 3, 1875 section 3, requires the petition for removal to be filed 'before or at the term at which such cause could be first tried. ' The causes here involved, were not at issue, nor had any step been taken to put them at issue, when the petition was filed. In that condition they could not be tried. The citation from 'Buskin's Indiana Practice'-- 'We understand that Justice Davis, when sitting in circuit for the district of Indiana, held that the application for removal must be made at the first term at which the cause could be put at issue'-- is too uncertain to be regarded as authority. Much more important are the cases of Scott et al., Trustee, v. Clinton & Springfield R. Co. 8 Chicago Legal News, 210, (6 Bissell, 529,) and Michigan R. Co. v. Andes Insurance Co. 9 Chicago Legal News, 34, in which it was held that, inasmuch as the cause cannot be tried, until the issues are made up, the application is in time if it come before the pleadings are completed, or the next term following their completion. In the valuable note...