Page:Federal Reporter, 1st Series, Volume 10.djvu/31

 EEBTIN» V. AMBRICAK OLBOSBAPH CO, Id �been heard or tried in the state court. Could it have been tried before the April term of the state court? Unless there is some rule of the state court which prevented it from being heard before the April term, then it could hardly be said to bs within the contingency named in the statute. �The rule in the state court upon the trial of ehancery cases is as follows : �"When any ehancery case is at issue, upon notice and motion of either party a cause, at any time within 10 days of the commencement of a term for which a trial calendar may be ordered made, may be placed on the trial cal- endar. The cases on such calendar shall be called and tried on Tuesday, Wednesday, Thursday, and Priday of each week. I<ro more than flve cases shall be flxed for trial on the same day ; but if the court is behind in the call of the calendar, not exceeding six cases may be called for trial any one day. AH«ases shall appear on the calendar in the order of the notice and motion. Ali cases remaining undisposed ot upon any calendar shall, without further order, be placed at the head of the next (new) calendar." �We have already stated that upon the transcript from the state court wernust assume that the replie ationwas filed to the answer on the thirtieth of November. It was then competent for either party to place the cause on the trial calendarfor the term of Deeember, January, February, or March. It was not, in point of fact, placed upon the trial calendar until the thirtieth of March, but it could have been by the defendants long before that time, as well as by the plaintiff ; and it is difficult to understand, therefore, how, under the cifcumstances of this case, we ean say that this application of the sixteehth of May, 1881, for the removal of the cause to this court, was made to the state court before it could there be tried. Thei'o certainly can be uo inference to that effect drawn fromwhat appears to this court. And the resuit is that the case must be remanded, on the ground that the application made for removal was too late, within the meaning of the third section of the act of congress of 1875. ��� �