Page:Federal Reporter, 1st Series, Volume 9.djvu/449

 434 FBDEBAL EEPORTEE. �answer further their cross-petition was dismissed, with costs. They appealeJ to the court of appeals, where, after some delay, it was decided and the judg- ment of the lower court was reversed and the cause sent back for further prooeeding, in conformity with an opinion then rendered. The mandate of the court of appeals was filed in the Louisville chancery court on the- — day of May, 1881, and an order entered overruling the demurrer to the answer and cross-petition of Norton & Calhoun. Meyer & Hay filed a reply to this answer and cross-petition on the day of May, 1881, and Norton & Cal- houn filed, on the twenty-first of June, 1881, an amended answer and cross- petition, and a rejoinder to the reply. This rejoinder re(iuired a surrejoinder, and the amended answer and cross-petition a reply. �The Code allowed two weeks' time within which Meyer & Hay could file their reply and surrejoinder. These pleadings could have been filed in the olerk's office with the same effect as in court. Sections 810 and 811. After the issues are made up, 30 days are allowed within which proof may be taken. Section 818. The Louisville chancery court �took its usual vacation from the day of July, 1881, to Sep- �tember 23, 1881, as appears from an agreement of facts filed by the parties in this court. Meyer & Hay filed their petition in the Louis- ville chancery court September 24, 1881, asking a removal of the cause to this court, and tendered the proper bond. That court accepted the bond, and ordered the cause to be transf erred so far as there was a controversy between Meyer & Hay and Norton & Cal- houn. This transcript bas been filed in this court, and Norton & Calhoun moved to remand the cause to the state court. �The learned counsel have urged several grounds for this motion, but it will only be necessary to notice two of them. The third sec- tion of the act of 1875 requires the petition for a removal of a cause from a state court to this court shall be "before or at the term at which said cause could be first tried, and before the trial thereof." It is insisted that by the rules and practice of the Louisville chancery court, that this cause could have been tried upon the issues as now formed, or upon issues which should have been joined before the twenty-fourth of September, 1881, and hence the petition for removal was too late. , �The construction of this languagein the actof 1875 is not nniform in the various circuit courts. It does not, I think, mean the term of court wheu the parties are first ready to try the cause, nor does it mean the term of court when the issues are first joined ; but it means that term of court at which, by the law and the practice of that court, the cause could have been first tried. The cause may not in fact be ready for trial, but if, by the law and the practice of the court where ��� �