BALTIMORE & OHIO RAILROAD
v.
BATES

U.S. | 1886-12-13
119 U.S. 464 Supreme Court of the United States (1886) Positive Treatment
Also reported at: 30 L. Ed. 436 · 7 S. Ct. 285 · 1886 U.S. LEXIS 2011 · SCDB 1886-062
Cited by 12 cases

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Synopsis

Baltimore & Ohio Railroad sought to remove a case from state court to federal court under subsection 3 of § 639 of the Revised Statutes, but the petition was filed after a new trial had been granted. The Supreme Court held that subsection 3 of § 639 remained in effect and was not superseded by the act of 1875, and that a removal petition filed before the final trial was timely even if filed after a new trial had been granted. The judgment of the Ohio Supreme Court was reversed and the case remanded.

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Opinion of the Court
Me. Chief Justice Waite,

Mr. Chief Justice Waite,

after stating the case, delivered the opinion of the court.

Sub-sections 1 and 2 of § 639 were repealed by the' act of 1875; Hyde v. Ruble, 104 U. S. 407; King v. Cornell, 106 U. S. 395, 398; Holland v. Chambers, 110 U. S. 59; Ayres v. Watson, 113 U. S. 594; but subsection 3 was not. Bible Society v. Grove, 101 U. S. 610; Hess v. Reynolds, 113 U. S. 73, 80. Under sub-section 3, the petition for removal, may be filed at any time before the final trial or hearing. Insurance Co. v. Dunn, 19 Wall. 214; Vannever v. Bryant, 21 Wall. 41; Yulee v. Vose, 99 U. S. 539, 545; Railroad Co. v. McKinley, 99 U. S. 147. This petition was filed after a new trial had' actually been granted, and while the cause was pending in the trial court for, that purpose. It was, therefore, in time, and no objection is made to its form. •

As sub-section 3 has not been repealed, so much of the remainder of § 639 as is necessary to carry,,¡Tie ..provisions.-of that sub-section into effect remains in force, unless-something else has been put in its place. It is not contended that anything of this kind'has been done, unless it be by'thé operation of § 3 of'the act of 1875, but that section by its-very terms.is only applicable to removals under § 2 of the same act.' The language is, “ that whenever either party, or any one or more of the plaintiffs or defendants entitled to remove any suit men-tioned in the next preceding section,” -that is to say, § 2 of the act of 1875, “shall desire to remove such suit,” he shall petition and give security in the manner and fonn therein prescribed. Clearly, then, this section. relates only to remováis provided for in that act, ancl as sub-section 3 of § 639 remains in force, because the cases there provided for are not included among those mentioned in the act of 1875, it follows that the form and mode of proceeding to secure a removal under the subsection will be sufficient if they conform to the requirements of the other parts of the section'. That section as it now, stands unrepealed is complete in itself, and furnishes its own machinery to effect a removal of all cases which come within its operation. The security is as much governed by the remainder of the section as the time for filing the petition; and as to that, it was distinctly held in, Hess v. Reynolds, supra, that the petition was in time if presented before the final trial, even though it was after the term at which the cause could have been first tried, which would be too late if § 3 of the act of 1875 was applicable to this class of cases. As to this the court said in that case: “We are of opinion that tins clause of § 639 remains, and is complete in itself, furnishing its own peculiar cause of removal, and prescribing, for reasons appropriate to it, the time within which it must be done..”

It is true this suit is between citizens of different States, and as such it is mentioned in § 2 of the act of 1875'; but the fair meaning of § 3 is that the suit must be one that is removable simply for the reason that it is one of a class such as is mentioned in § 2. Some cases in the circuit courts have been ruled the other way, and the decision of the Supreme Court of Ohio was put largely on their authority; but they were all decided before Hess v. Reynolds, supra, in this court, and that case, as we think, substantially covers this.

The judgment of the Supreme Court of Ohio is reversed, a/hd the canse remanded for further proceedings i/n aecorda/nee with this opinion.

Cases With Similar Vibessemantic neighbors from the corpus

Citator

Cited By

  • Fisk v. Henarie, 142 U.S. 459 (U.S. 1892)
    …cause could be first tried and before the trial thereof.” 18 Stat. 470, 471, c. 137. This act repealed the first and second subdivisions of section 639 Of the Revised Statutes, but .left subdivision 3 unrepealed. Baltimore & Ohio Railroad v. Bates, 119 U. S. 464, 467. In Insurance Company v. Dunn, 19 Wall. 214, it was held that the word “final” as used in the phrase “at any time before the final hearing or • trial of the suit ” applied to the word “ trial ” as well as to the word “ hearing.” And it has bee…
    1 / 2
  • Hanrick v. Hanrick, 153 U.S. 192 (U.S. 1894)
    …concerning removal on the specific ground of prejudice or local influence, and did not repeal clause 3 of section 639 of the Revised Statutes. Bible Society v. Grove, 101 U. S. 610; Hess v. Reynolds, 113 U. S. 73; Baltimore & Ohio Railroad v. Bates, 119 U. S. 464. The act of March 3, 1887, c. 373, corrected by the act of August 13, 1888, c. 866, was intended, as this court has often recognized, to contract the jurisdiction of the Circuit Courts of the United States, whether original over suits brought there…
  • Cochran & the Fid. & Deposit Co. v. Montgomery Cnty., 199 U.S. 260 (U.S. 1905)
    …division, of the act of July 27, 1866; and the third subdivision, of the act of March 2, 1867. The act of March 3, 1875, repealed the first and second subdivisions, but left subdivision three unrepealed. Baltimore and Ohio Railroad Company v. Bates, 119 U. S. 464, 467. The act of March 3, 1887, repealed the act of 1867, or subdivision, three of section 639. Fisk v. Henarie, 142 U. S. 467. In describing the class of suits .removable on the ground of prejudice or local influence, the language in the act of 188…

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