Baltimore v. Bates/Opinion of the Court

Subsections 1 and 2 of section 639 were repealed by the act of 1875, (Hyde v. Ruble, 104 U.S. 407; King v. Cornell, 106 U.S. 395, 398; S.C.. 1 Sup. Ct. Rep. 312; Holland v. Chambers, 110 U.S. 59; S.C.. 3 Sup. Ct. Rep. 427; Ayres v. Watson, 113 U.S. 594; S.C.. 5 Sup. Ct. Rep. 641;) but subsection 3 was not, (Bible Soc. v. Grove, 101 U.S. 610; Hess v. Reynolds, 113 U.S. 73, 80; S.C.. 5 Sup. Ct. Rep. 377.) Under subsection 3, the petition for removal may be filed at any time before the final trial or hearing. Insurance Co. v. Dunn, 19 Wall. 214; Vannevar v. Bryant, 21 Wall. 41; Yulee v. Vose, 99 U.S. 545; Railroad Co. v. McKinley, Id. 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As subsection 3 has not been repealed, so much of the remainder of section 639 as is necessary to carry the provisions of that subsection into effect remains in force, unless something else has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 the operation of section 3 of the act of 1875; but that section, by its very terms, is only applicable to removals under section 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 mentioned in the next preceding section,' that is to say, section 2 of the act of 1875, 'shall desire to remove such suit,' he shall p tition and give security in the manner and form therein prescribed. Clearly, then, this section relates only to removals provided for in that act; and, as subsection 3 of section 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 from 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 section 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 this clause of section 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 section 2 of the act of 1875; but the fair meaning of section 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 section 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, and the cause remanded for further proceedings in accordance with this opinion.