Page:Federal Reporter, 1st Series, Volume 1.djvu/469

 FORIiEST V. EDWIN POKEEST HOME. 461 �New York, that "at any time after the joinder of issue, and at ieast 14 days before the commencement of the term, either party may serve a notice of trial; that at Ieast 12 days before the commencement of the term the party serving the notice must file with the clerk a writ of issue; and that the olerk must thereupon enter the cause upon the calendar aocording to the date of the issue." �It is provided, by section 980 of the same code, that either party who has served the notice may bring the issue to trial, and proceed in the absence of the adverse party. The place of trial of this action was the county of Westchester, and the place of trial of the issue in it was a circuit court to be held in that county. The plaintiff shows that after tHe joining of 8uch issue, and prior to such order for removal, circuit courts were held in said county of Westchester, commencing, one March 3, 1878, one June 3, 1878, one September 16, 1878, one December 9, 1878, one March 3, 1879, one June 2, 1879, and one September 15, 1879. �The defendant shows that sinee issue was joined the plain- tiff has procured seven commissions to six different places to examine witnesses, the last of which was procured November 12, 1-879; that none of them have been returned; that the suit was noticed for trial for the first time for a term of court commencing December 15, 1879; and that it was never before noticed for trial or placed on the calendar of the court for trial. �The plaintiff contends that as either party could have noticed the cause for trial at any one of the terms named, and as there was no legal obstacle to the noticing of the cause by the defendant, and no stay of proceedings in the orders for commissions, or otherwise, the removal is too late. The defendant contends that as the cause could not be tried, under the statute of New York, until it was in f act noticed for trial and placed upon the calendar, the removal was in time. �The defendant cites the case of Warner v. The Pennsylvania R. Co. 13 Blatch. G. C. E. 231. But in that case there were etays of proceedings which prevented a trial. In Pettilon v. Noble, 7 Bissell, 449, cited by the defendant, it would appear ��� �