1 been held, because of a difference of citizenship. An intervenor cannot remove the case, when his intervention takes place after the expiration of the original defendant's time to remove. § 543f. Effect upon right to removal of dismissal as to other defendants. Where the plaintiff's original pleading does not represent a removable case, but he consents to a discontinuance or to a nonsuit or a voluntary dismissal as regards those defendants who are citizens of the same State as himself; the remaining defendant, who is a citizen of another State, may remove the cause as soon as he is notified of such dismissal or discontinuance; although the defendants thus dismissed appear to be necessary parties to the suit; 2 and even when the discontinuance or voluntary dismissal takes place upon the trial of the action. To have this effect, the dismissal must be the voluntary act of 3 Relfe v. Rundle, 103 U. S. 222, 26 L. ed. 337; American Nat. Bank of Denver v. National Benefit & Casualty Co., 70 Fed. 420; Green v. Valley, 101 Fed. 882 (in which case the defendant, whose time had expired, joined with them in the application). See Robert v. Pineland Club, 139 Fed. 1001. 4 Hakes v. Burns, 40 Fed. 33; Kidder v. N. W. Mutual Life Ins. Co., 117 Fed. 997. But see Jackson v. Stiles (New York), 4 Johns. 493. $543f. 1 Powers v. Chesapeake & O. Ry. Co., 169 U. S. 92, 42 L. ed. 673, 18 S. Ct. 264; affirming judgment, 65 Fed. 129; Cookerly v. Great Northern R. Co., 70 Fed. 277; Fogarty v. Southern. Pac. Co., 121 Fed. 941 (where the, motion for a removal was made 19 days after the voluntary dismissal, and it did not appear when the remaining defendant first learned of the dismissal of the case as against his co-defendant, nor when the petition and bond were filed). Where an action of ejectment had been succeeded by a suit against the plaintiffs by some of the defendants therein, to determine the title to a patent for the same land, as to which the latter had made an adverse claim, and after judgment in favor of the plaintiffs in the first suit, which had been vacated upon the payment by the defendants of the costs and their demand for a new trial, the second suit had been dismissed as to some of the defendants, upon the plaintiff's request, thus making the remainder of the parties on opposite sides citizens of different States; it was held to be too late to remove this second suit, Evans v. Smith, 21 Fed. 1. 2 Cuyler v. Smith, 78 Ga. 662, 3 S. E. 408. 8 Powers v. Ches. & O. Ry. Co., 169 U. S. 92, 94, 42 L. ed. 673, 674. It was so held, when the plaintiff elected to proceed to trial against a foreign defendant without having served process on the one who was a citizen of his own State, Berry v. St. Louis & S. F. R. Co., 118 Fed. 911. the plaintiff. A failure to oppose a motion for a dismissal does not. An order sustaining a demurrer by such a defendant with permission to the plaintiff to take an involuntary nonsuit against him and leave to set this aside does not end the case as against such defendant until an affirmance of such order by the court of review or the expiration of plaintiff's time to appeal or sue out a writ of error.6 Where the plaintiff sued a citizen of his own State and a citizen of another State, jointly in tort, and having failed to serve the former when the case was called for trial, refused to continue it for such service, but elected to proceed against the citizen of the other State alone; it was held that this should be treated as an election and severance of the suit; and that it was thereupon removable by the defendant, who had been served." Where the plaintiff, in good faith, insists on the joint liability of all the defendants throughout the trial, and the complaint is dismissed upon the merits as to such as are citizens of his State,8 or a verdict rendered in their favor, the remaining defendants cannot then remove the case.. Where an action was brought against several defendants jointly, some of whom were citizens of the same State as the plaintiff, and after a dismissal as to all, the State court of appeals affirmed such judgment of dismissal, except as regards a citizen of another State; it was held that there was thus a severance of the action, and that the remaining defendant might remove the same.10 Where, in a suit upon a joint cause of action against a domestic and a foreign corporation, judgment had been entered against the latter upon substituted service by default; and at the trial the domestic corporation secured a judgment in its favor from which plaintiff appealed; it was 4 Am. Car & Foundry Co. v. Kettelhake, 236 U. S. 311. 5 Moeller v. Southern Pac. Co. et al., 211 Fed. 239. 6 Am. Car Co. v. Kettelhake, 236 U. S. 311; Southern Railway v. Lloyd, 239 U. S. 496. 7 Berry v. St. Louis & San Franvisco R. Co., 118 Fed. 911. 8 See McAllister v. Chesapeake & O. Ry. Co., 198 Fed. 660, 669, 674; 9 Key v. West Kentucky Coal Co., 237 Fed. 258. 10 Yulee v. Vose, 99 U. S. 539, 25 L. ed. 355 (reversing 64 N. Y. 449, 4 Hun. 628). held that, until the final disposition of the appeal, the foreign corporation could not apply for a removal.11 § 543g. Change of venue affecting time of removal. Where the case could not have been removed from the county in which it was brought; but after answer the venue was changed to a county in another district wherefrom it was removable: it was held, that the time for removal was thereby extended.1 § 543h. Removals before trial. Removals for prejudice or local influence,1 and removals of actions between citizens of the same State claiming land under grants of different States,2 must be made "before the trial." It has been said that the statute requires, in the case of removals because of prejudice.or local influence, "the application to remove to be filed before or at the term which the cause could first be tried and before the trial thereof." A removal for prejudice or local in3 fluence must be made before the first trial of the cause. A mistrial because of a disagreement of the jury,5 or an order for a new trial, does not enlarge the time. Such a removal must be made before the first step in the trial is taken. It has been 11 Lathrop, Shea & Henwood Co. v. Interior Const. & Imp. Co., 143 Fed. 687. § 543g. 1 Gorey v. Pathe Freres, N. Y. Sup. Ct. Sp. Tm. per Jaycox, J., N. Y. L. J., Feb. 13, 1915. § 543h. 125 St. at L. 433, § 2. 225 St. at L. 433, § 3. 3 Fuller, C. J., in McDonnell v. Jordan, 178 U. S. 229, 239, 44 L. ed. 1048, 1052. Contra, Huskins v. Cincinnati, N. O. & T. P. Ry. Co., 37 Fed. 504, 3 L.R.A. 545; writ of error dismissed, 154 U. S. 506, 14 Sup. Ct., 1147, 38 L. ed. 1076; Taft, J., Detroit v. Detroit City Ry. Co., 54 Fed. 1, 11; Parker v. Vanderbilt, 136 Fed. 246. 4 Fisk v. Henarie, 142 U. S. 459, 12 Sup. Ct. 207, 35 L. ed. 1080; reversing 32 Fed. 417 (13 Sawyer, 38), and 35 Fed. 230 (13 Sawyer, 318); McDonald v. Jordan, 178 U. S. 229. 5 McDonnell v. Jordan, 178 U. S. 229, 44 L. ed. 1048; Davis v. Chicago & N. W. Ry. Co., 46 Fed. 307; Farmers' & Merchants' Nat. Bank v. Schuster, 86 Fed. 161, 29 C. C. A. 649. 6 Fisk v. Henarie, 142 U. S. 459, 12 Sup. Ct. 207, 35 L. ed. 1080; reversing 32 Fed. 417, 13 Sawyer 38, and 35 Fed. 230, 13 Sawyer 318. 7 Bank of Maysville v. Claypool, 120 U. S. 268, 7 Sup. Ct. 545, 30 L. ed. 632; Manning v. Amy, 140 U. S. 137, 11 Sup. Ct. 707, 35 L. ed. 386; affirming Amy v. Manning, 144 Mass. 153, 10 N. E. 737; Waggener v. Cheek, Fed. Cas. No. 17,035 (2 Dill. 560); Lewis v. Smythe, Fed. Cas. No. 8,333 (2 Woods 117); Davis v. Chicago & N. W. Ry. Co., 8 9 held that it is too late after a jury has been accepted, but not sworn; after the case has been called and a motion by defendant for a continuance has been made and overruled; or the plaintiff has answered ready and time granted the defendant to present an application for a continuance; 10 or an hour's time allowed defendant for the procurement of counsel; 11 or the defendant has, after his motion for a postponement was denied, consented to a reference in order to prevent an immediate trial; 12 but that it is not too late, when upon the cause being called for trial, objections were made that it was not ready and it is sent to another part of the court, for the hearing of a motion to vacate an order extending the time to amend the answer; nor when an attempt has been made to begin the trial of a case before it was properly triable in the regular course of procedure.14 13 The preponderance of authority holds that the argument of a general demurrer is a trial within the meaning of the statute.15 46 Fed. 307; Fleming v. Fire Ass'n Co. 10 Watt v. White, 46 Tex. 338. 11 Fleming v. Fire Ass'n of Philadelphia, 76 Ga. 678. 12 Hanover Nat. Bank v. Smith, Fed. Cas. No. 6,035 (13 Blatchf. 224). 13 Maloy v. Duden, 25 Fed. 673. 14 Removal Cases, 100 U. S. 457, 25 L. ed. 593. 15 Alley v. Nott, 111 U. S. 472, 28 L. ed. 491; Scharff v. Levy, 112 U. S. 711, 28 L. ed. 825; Gregory v. Hartley, 113 U. S. 742, 28 L. ed. 1150; Laidly. v. Huntington, 121 U. S. 179, 7 Sup. Ct. 855, 30 L. ed. 883; Boyd v. Gill, 19 Fed. 145 (21 Blatchf. 543); Wilson v. Rock Island Paper Co., 20 Fed. 705; St. Louis & S. F. Ry. Co. v. Weaver, 35 Kan. 412, 11 Pac. 408, 57 Am. 176; Miller v. Kent (New York), 60 How. Prac. 451; all these cases were under the similar language under the act of 1875. Lookout Mountain Ry. Co. v. Houston, 32 Fed. 711; Winkler v. Chicago & E. I. R. Co., 108 Fed. 305. (Both of these were under the act of 1887). Contra, Whelan v. N. Y., L. E. & W. R. Co., 35 Fed. 849, 1 L.R.A. 65; under act of 1887. It was held, under the act of 1875, that a case could not be removed after a demurrer to the answer had been sustained and a cross-petition dismissed. Meyer v. Norton, 9 Fed. 433. Where the State statute provided that a demurrer should be It was held that the hearing and decision of a motion for an injunction and a temporary receiver was not a trial.16 Where the court of ordinary had made a decree admitting a will to probate, and an appeal had been taken to a court of record, which had the right to try the question anew; it was held that it was not too late to remove the case under the act of 1887 for prejudice or local influence.17 It has been held: that after the decree of a court of probate upon a petition by an administratrix for final accounting and for a distribution, in which she claimed to be the sole heir at law of the decedent, the cause could not be removed upon an appeal to a court of record, where the questions then decided could be tried anew.18 That a case could not be removed pending an appeal from an award of arbitrators under the Pennsylvania statute,19 although it may be after the report of commissioners, to whom a claim had. been referred by a probate court under the Michigan statute; 20 nor upon an appeal from the decision of a board of county commissioners upon a claim against their country; 21 nor upon an appeal from an appraisal by commissioners in a condemnation proceeding, when their proceeding was purely administrative in its nature.22 It has been said that the trial court is under no obligation to delay the trial of the cause in order to enable a party to prepare an application for a removal.23 disposed of at the first term, and that the second trial, after service had been perfected, "should be the trial term of all equity causes"; it was held that the cause might be removed, under the act of March 2d, 1867, because of local prejudice after a demurrer had been overruled. Hone v. Dillon, 29 Fed. 465. 16 Franklin v. Wolf, 78 Ga. 446, 3 S. E. 696. Contra, Lehigh Coal & Nav. Co. v. Central R. Co., Fed. Cas. No. 8,213. 17 Brodhead V. Shoemaker, 44 Fed. 518. Under Georgia statute, contra, In re Frazer, Fed. Cas. No. 5,068. 18 Craigie v. McArthur, Fed. Cas. No. 3,341, 4 Dill. 474 (under the 19 Thorne v. Towanda Tanning Co., 15 Fed. 289. 20 Hess v. Reynolds, 113 U. S. 73, 5 Sup. Ct. 377, 28 L. ed. 927 (under act of 1875). 21 Delaware County Com 'rs V. Diebold Safe & Lock Co., 133 U. S. 473, 10 Sup. Ct. 399, 33 L. ed. 674 (under U. S. R. S., § 639, ch. 3). 22 Union Pac. Ry. Co. v. Myers, 115 U. S. 1, 5 Sup. Ct. 1113, 29 L. ed. 319; reversing judgment, Myers v. Union Pac. Ry. Co., 16 Fed. 292, 3 McCrary 578 (under act of 1875). See supra, § 538. 23 United States Sav. Inst. V. Brockschmidt, 72 Ill. 370. |