Page:Federal Reporter, 1st Series, Volume 1.djvu/468

 460 FEDERAL RKrOETBR. �ting forth, among other things, that the plaintiff was at the commencement of the suit and is a citizen of the state of Massachusetts, and that the Edwin Forrest Home was at the commencement of the suit and is a corporation created by the state of Pennsylvania and a citizen of that state; that "this is a suit in which there can be a full and final deter- mination of the controversy between the plaintiff and your petitioners, the Edwin Forrest Home, without the presence of the other defendants as parties in the cause;" that the de- fendants Keeler and Lawrence were, at the commencement of the suit, and are both of them, citizens of the state of New York ; that both of them are in def ault for net answering the complaint; and that the petition "is made and presented before or at the term at which said cause oould first be tried, and before the trial thereof . " �The prayer of the petition is that the suit, "so far as con- cerns your petitioners, the said the Edwin Forrest Home, be re- moved into the circuit court of the United States for the Southern district of New York." �On the petition, and a bond, the state court entered an order, on the ninth of December, 1879, accepting the petition and the bond, and ordering "that this action, so far as con- cerns the said defendant, the Edwin Forrest Home, be and the same hereby is removed for trial from this court into the next circuit court of the United States, to be held in and for the Southern district of New York, in the second circuif, and that this court proceed no further therein." �The removal in this case is not one provided for by subdi- vision 2 of § 639 of the Eevised Statutes of the United States, because the plaintiff is not a citizen of New York. The removal must, therefore, be upheld, if at ail, under the aet of March 3, 1875, (18 U. S. St. at Large, 470.) �The plaintiff moves to remand the cause to the state court, on the ground that the removal was not applied for in time, under section 3 of the act of 1875, which requires that the application shall be made "before or at the time at which said cause could be first tried, and before the trial thereof." �It is provided, by section 977 of the Code of Procedure of ��� �