Page:Federal Reporter, 1st Series, Volume 10.djvu/320

 308 FEDERAL REPORTER. �local law and practice, a case could have been tried at a stated term, a removal cannot be had after the lapse of that term. Qurnee v-Brunsioick,! Hughes, 270; Damille Banking <& T. Oo. v. Farks, 88 111. 170; Carswell v. Schley, 59 Ga. 17; Cole v. La Chambre, 31 La. Ann. 41; New York W. & S. Co. v. Loomis, 122 Mass. 431; Inhab. of School Dist. v. JEtna Ins. Co. 66 Me. 370; Watt V. Whitt, 46 Tex. 338. �If the State law requires that the case be tried at a certain term it cannot be lemoved after that term, whether the issues are made up or not. Atlee V. Pottsr, 4 Dill. 559. �ihe flrst term at which the case can be tried is the tenu at which there is an issue for trial. Mey&r v. Conutruotion Co. 100 U. S. 474; Scott v. Clinton <& 8. R. Co. 6 Biss. 529; Qurnee v. Brunswick, 1 Hughes, 270; Qreen v. Kingler, 10 Cent. Law J. 47 ; Whitehouse v. Continental Ins. Co. 37 Leg. Int. 225 ; Phomix Life Ins. Co. v. 8aettel, 33 Ohio St. 278. �The term " at which a cause could be flrst tried " means when the issues are fli-st made up. Scott v. Clinton & 8. R. Co. 6 Biss. 529. �A case is in a condition to be tried when it is at issue, but a case is not at issue, where the answer requires a reply to be flled, till such reply is filed. Mich. Cent. R. Co. v. Andes Ins. Co. 9 Clii. Leg. News, 34. �A cause not at issue as to one defendant may be removed as to him, al- though it has long been at issue as to the other parties. Stapleton v. Rey- nolds, 9 Chi. Leg. ITews, 33. As where he has just been served with process. €h'eene v. Kingler, 10 Cent. Law J. 47. �ihe application must be made when the cause is ready for trial, although the court and parties may not be ready to try it. Ghirnee v. Brunswick Co. 1 Hughes, 2^70 ; Blackwell v. Brown, 1 Fed. Eep. 351 ; Chicago, B. & Q. R. Co. V. Welch, 44 lowa, 665; Whitehouse v. Ins. Co. 2 Fed. Rep. 493. So, if the case was at issue and could have been tried, but was continued over the term by consent of parties, it is then too late. Scott v. Clinton <& S. R. Co, 6 Biss. 529 ; Stough v. Hatch, 16 Blatchf. 233. Unless the state law did not require it to be tried at the appearance term. Paliner v. Call, 4 Dill. 566. �Under the law of 1867, Eev. St. § 639, par. 3, when the defendant is a citi- zen of the state where suit is brought, plaintiffs cannot remove the case on the ground of local prejudice if one of them is a citizen of the same state, except where the controversy cannot be settled without the presence of the other plaintiffs, Bliss v. Rawson, 43 Ga. 181 ; Martin v. Coons, 24 La. Ann. 169|. And see Bryant v. Scott, 67 N. G. 391. But a non-resident plaintifE may remove a cause against a citizen of the state in which suit is brought and a citizen of another state, the latter of whom voluntarily appears. Akerly v. Vilas, 2 Biss. 110; S. G. 1 Abb. 284; Sands v. Smith, 1 DilL 290; S. G. 1 Abb. 368.— [Ed. ��� �