Phoenix Mutual Life Insurance Company v. Walrath/Opinion of the Court

The order remanding this case is affirmed. The right to the removal of a suit under the act of March 3, 1875, (18 St. 470, c. 137,) is lost by a failure to file a petition 'before or at the term at which said cause could be first tried, and before the trial thereof,' and it is not restored by an amendment of the pleadings afterwards so as to present different issues. As was said in Babbitt v. Clark, 103 U.S. 612, 'the act of congress does not provide for the removal of a cause at the first term at which a trial can be had on the issues, as finally settled by leave of the court or otherwise, but at the first term at which the cause, as a cause, could be tried.' This rule has been strictly adhered to. Edrington v. Jefferson, 111 U.S. 775; S.C.. 4 Sup. Ct. Rep. 683; Pullman Palace Car Co. v. Speck, 113 U.S. 87; S.C.. 5 Sup. Ct. Rep. 374; Gregory v. Hartley, 113 U.S. 745; S.C.. 5 Sup. Ct. Rep. 743. Here the suit was begun July 19, issue joined August 26, 1880, and a trial had February 23, 1881, which resulted in a verdict and judgment for the present plaintiff in error. This judgment was reversed by an appellate court, October 19, 1881, and the cause sent back for a new trial. In the trial court an amended answer, which contained a counter-claim, was filed, on leave, May 20, 1882, and the petition for removal was not filed until September 13, 1882. This was clearly too late. Affirmed.