Bills v. The New Orleans, St. Louis and Chicago Railroad Company.

and forms and modes of proceeding in the State Courts, as they may exist from time to time, are adopted, to govern in the Circuit and District Courts, in civil causes other than equity and admiralty, the next section, (915,) contains a distinct rule in respect to attachments. By that section, in common law causes, the plaintiff is entitled, in the Circuit and District Courts, to similar remedies, by attachment or other process against the property of the defendant, as were then provided (June, 1872, 17 U. S. Stat. at Large, 197,) by the laws of the State in which those Courts were held, for the Courts thereof. It was further provided, that, from time to time, (in the future,) the Circuit and District Courts might, by general rules, adopt such State laws as might be in force in the States where they should be held, in respect to attachments and other process against the property of defendants. But it was provided that similar preliminary affidavits or proofs, and similar security to that required by the State laws, should be furnished by the party.

In addition to these provisions, which relate to attachments sued out in the United States Courts, there are special provisions as to attachments procured in the State Courts in causes afterwards removed into the Circuit Courts of the United States. Thus, section 646 of the Revised Statutes provides, that "any attachment of the goods or estate of the defendant, by the original process, shall hold the same to answer the final judgment, in the same manner as, by the laws of such State, they would have been held to answer final judgment had it been rendered by the Court in which the suit was commenced." This section, the construction of the latter part of which is rendered difficult by the substitution of the word "State," probably, for "United States," is followed, in the Act of March 3d, 1875, (18 U. S. Stat. at Large, 471, sec. 4,) by the provision, "that, when any suit shall be removed from a State Court to a Circuit Court of the United States, any attachment or sequestration of the goods or estate of the defendant, had in such suit in the State Court, shall hold the goods or estate so attached or sequestered, to answer the final

Bills v. The New Orleans, St. Louis and Chicago Railroad Company.

judgment or decree, in the same manner as, by law, they would have been held to answer final judgment or decree, had it been rendered by the Court in which such suit was commenced; **** and all injunctions, orders, and other proceedings, had in such suit, prior to its removal, shall remain in full force and effect until dissolved or modified by the Court to which such suit shall be removed." Section 6 of the same Act likewise provides, that the Circuit Court shall, in all suits removed under the provisions of that Act, proceed therein as if the suit had been originally commenced in the Circuit Court, and the same proceedings had been taken in such suit, in said Circuit Court, as shall have been had therein in such State Court, prior to its removal. Taking all these provisions together, I think it plain, that it is the intention of the law making power, as disclosed by the direction for conformity, in respect to attachments in original suits, to the laws of the States, by the direction to proceed in removed suits as if they had been originally begun in the Circuit Court, and as if what had been done in the State Court had taken place in the Circuit Court, and by the other provisions which have been referred to, to secure, in each State, one method of procedure in all common law cases, and to attain that result by adopting in general the procedure of the State Courts in the respective States. If this view is not allowed to govern, then I fail to see how the clear indications of the legislative will in respect to attachments are to be carried out. If it does govern, then the practice and procedure of this Court is as well defined as that of the State Court, and can be applied in practice by the body of the profession, which has been bred up in the State practice as it now exists, and is, to a great degree, ignorant of that practice which preceded it. Of course, the distinction between law and equity is preserved, both in substance and in procedure, and the provisions of positive statutes of the United States are not invaded; but, in the absence of such provisions, the State practice prevails.

Entertaining these views, I am of opinion that the plaintiff is entitled to proceed in the reference pending when the cause

Warner. The Pennsylvania Railroad Company.

was removed, in accordance with the laws of New York in that behalf; and that the order asked for in that respect should be granted.

Lucius E. Chittenden, for the plaintiff.

Francis N. Bangs, for the defendants.

CHARLES P. WARNER

vs.

THE PENNSYLVANIA RAILROAD COMPANY.

A suit in a State Court, which falls within the description of suits removable into this Court, may be removed, although it could not originally have been brought in this Court.

That principle is not changed by the provision of section 5 of the Act of March 3d, 1875, (18 U. S. Stat. at Large, 472,) which provides for the dismissal or remanding by this Court of suits not really and substantially involving a dispute or controversy within the jurisdiction of this Court.

Under § 3 of said Act of 1875, which provides that a suit cannot be removed unless the application for removal is made before or at the term at which the cause could be first tried, if the term at which the cause could otherwise be first tried is one which occurs during the time a trial of the cause is stayed by an order of the State Court, it is not such a term as is meant by the

statute.

(Before JOHNSON, J., Southern District of New York, January 7th, 1876.)

JOHNSON, J. The plaintiff applies to have this cause remanded to the State Court, upon the ground that this Court has no jurisdiction, the defendant being a corporation created under the laws of Pennsylvania, and, therefore, not an inhabitant of this District, nor capable of being found therein, within

Warner . The Pennsylvania Railroad Company.

the meaning of section 1 of the Act of March 3d, 1875, (18 U. S. Stat. at Large, 470.) But, this view assumes that the jurisdiction of the Court in respect to causes removed is limited in the same way, in respect to inhabitancy and being found in the District, as it is in respect to suits originally brought in the Court. It was, however, well settled, previous to the Act of 1875, above referred to, that these restrictions. upon the jurisdiction, in respect to suits originally brought in the Court, did not apply to suits otherwise capable of being removed; and that a suit in a State Court, which fell within the description of removable causes, might be removed, although it could not originally have been brought in the Circuit Court. (Barney v. Globe Bank, 5 Blatchf. C. C. R., 107; Sayles v. N. West. Ins. Co., 2 Curtis C. C. R., 212.) It is now urged, that section 5 of the same Act has introduced a different rule. That section provides, that, if a suit commenced in a Circuit Court, or removed there from a State Court, afterwards appears not to involve really and substantially a dispute or controversy within the jurisdiction of said Circuit Court, or that the parties to the suit have been improperly or collusively made or joined, either as plaintiffs or defendants, for the purpose of creating a case cognizable or removable under the Act, the Court shall dismiss it, or remand it to the State Court. All that is necessary to bring the case really and substantially within the jurisdiction is, that it involves a controversy of the character, either as to the subjectmatter or the parties, specified in either the section which defines the jurisdiction by original suit, or that which authorizes removal and the acquisition of jurisdiction in that

manner.

In this case, the controversy is between citizens of different States, and was pending in the State Court within this District. It is true, that the defendant could not have been originally proceeded against in this Court; but it has, upon its own motion, come into this Court, and has thus placed itself in a position where it could not question its jurisdiction, even if it desired to do so. (Bushnell v. Kennedy, 9 Wallace, 387,

Warner v. The Pennsylvania Railroad Company.

393, 394.) It comes here, not as originally subject to the compulsory jurisdiction of this Court, but as entitled to the privilege of a resort to its authority, under the statute referred to.

Another point is suggested as ground for the motion, and that is, that the application to remove was made too late. It was decided in The Merchants' & Manufacturers' Bank v. Wheeler, (ante p. 218,) that the phrase of section 3 of the Act of March 3d, 1875, fixing the time when the application to remove must be made, "the term at which said cause could be first tried," must be construed to mean a term after the law mentioned took effect. In this case, therefore, such a term was one occurring after the 3d of March, 1875. At that time, it appears by the record that a stay of proceedings in the cause existed, upon an order requiring the plaintiff to file security for costs, which had been granted before the Act in question. became a law. On the 30th of March, in an order for a commission for the examination of witnesses, the trial of the cause was stayed until the return of the commission. This stay continued until after the petition for removal was presented. The question, therefore, in this regard, is, whether, where a trial is stayed by order of the Court, a term occurring during such stay can be said to be, within the meaning of the statute, a term at which the trial could be had. When no legal obstacle to a trial exists at a particular term, it may be said that the trial could be had at that term, although, in point of fact, the state of the business of the term may satisfy the Court that the particular cause will not be called for trial. But, if a legal obstacle exists to a trial at a particular term, it is difficult to see in what just sense it can be said that the trial could be had at that term. The general purpose of the statute is to require diligence in making the application to remove. must be made before the trial, and before or at the earliest term at which a trial could be had. But, if, by reason of a stay of proceedings, or for any other cause, the case could not be brought to trial at a particular term, even if it were the only case pending, then that is not such a term as is described

It