Page:Federal Reporter, 1st Series, Volume 10.djvu/30

 18 FEDERAL REFOfiTEB. �court to file a replioation, because a replication had been filed on th« thirtieth of November, 1880, which had been lost, or could not be found. The court, upon evidence -which it deemed satiefaetory, allowed a replication to be filed as of that day. The order of the court is a nunc pro tenc order, not in form finding that there was a replioation filed on the thirtieth of November; but taking the whole proceedings of the court together, -with its order upon this subject, it is clear that the court must have been satisfied that there was a replication filed on that day. It is objected by the defendants seek- ing a removal that the state court had no right, as this court had obtained jurisdiction of the cause, to make this order ; but if it be a fact that the replication was filed on that day, and it was lost or mis- laid, there can be no doubt that it was competent for the court, irre- spective of the question of removal, to allow the replioation to be supplied by a similar paper. This authority the court had under the statute of this state of March 19, 1872, and prqbably at com- mon law, independent of the statute. It appears that at the time the cause was set down for hearing, and perhaps befbrethat, some search had been made for a replication and none could be found ; and the attention of the court was called to the fact that there did not appear to be any replication among the files of the cause. It is not stated at what precise time search was made by the defendants' counsel for the replication and none was found. ■ �The question involved in the cause, then, ia whether under these facts the application for a removal was made in time. We must assume that a replication was filed on the thirtieth of November, 1880. Under the statute of the state upon the subject the Cause was then to be deemed at issue and standing for hearing. It was com- petent for either party to call up the cause for hearing upon oral evidence to be taken in dourt. Under the statute of the state repli- cations are general, and are to be filed within a certain time after the plaintiff or his attorney bas been served with notice of answer filed. Consequently, up to the time when the petition for the removal of the cause was filed, there had oocurred the November, Deeember, January, February, and March terma of the circuit court of the state. There should be, perhaps, exeluded from this list the month of November, as the replication was not filed until the last day of that month. The third section of the act of 1875 requires, in order to remove a suit from a state to the federal court, that the petition for removal must be filed in the state court before or at the term at which the case could be first tried and before the trial thereof. This cauee had not ��� �