PHŒNIX LIFE INSURANCE COMPANY
v.
WALRATH
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Phoenix Life Insurance Company lost its right to remove the case to federal court by failing to file its removal petition before the first term at which the suit could be tried, and that right was not restored by the later filing of an amended answer introducing new issues. The Supreme Court affirmed that removal under the 1876 removal statute must be sought at the first term when the cause could be tried, not at the first term when trial could occur on amended pleadings.
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Mr. Chief-Justice Waite delivered'the opinion of the court.
The order remanding this case is affirmed... The right to the removal of a suit.under the act of March 3, 1876, 18 Stat. 470, ch. 137, is lost by a failure to' file a petition “ before or at the .term at-which said cause could be first tried and before the trial thereof,” and it is not restored by an amendment of -the pleadings afterwards so as to present different issues. As was said in Babbitt v. Clark, 103 U. S. 606, 612, “the act of Congress does not provide for the removal of a cause at the first .term at which a .trial -can be had on the issues, as finally settled by leave of the court or otherwisé, but at the first term at which the cause, as a cause, could be tried.” This rule has been strictly adhered to. Edrington v. Jefferson, 111 U. S. 770, 775; Pullman Palace Car Co. v. Speck, 113 U. S. 84, 87; Gregory v. Hartley, 113 U. S. 742, 745. Here the suit was begun July 19, issue joined August 26,1880, and a trial had February 23, 1881, which resulted in a verdict and judgment for the present plaintiff in error. This judgment was reversed by an. appellate court October 19, 1881, and the cause sent back for. a new trial. In the trial court an amended answer which contained a counter-claim was filed on leave May 20, 1882, and the petition for removal was not filed until September 13,1882. This was clearly too late. .
Affirmed.
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Join FLexlaw to unlock all legal intelligenceAuthorities Cited
- Babbitt v. Clark, 103 U.S. 606 (U.S. 1880)
- Pullman Palace Car Co. & Others v. Speck & Others, 113 U.S. 84 (U.S. 1885)
- Edrington v. Jefferson & Another, 111 U.S. 770 (U.S. 1884)
- Gregory & Others v. Hartley & Another, 113 U.S. 742 (U.S. 1885)