
    Bates v. Railroad Co.
    1. The third clause of section 639 of the Revised Statutes of the United States is not repealed by the Act of Congress of March 3, 1875, entitled, “An act to determine the' jurisdiction of circuit courts'of the United States, and to regulate the removal of causes from state courts, and for other purposes.”
    2. A petition, in accordance with that clause of section 639, for the removal of a suit to the circuit court, on the ground of prejudice and local influence, may be filed at any time before the trial or final hearing in the state court.
    8. The objection that no evidence is given that the sureties on the bond filed with the petition are good and sufficient, is waived if not made at the time of the application for removal.
    4. Where the condition of the bond which is offered does not provide for the payment of all costs that may be awarded by the circuit court, if said court shall hold that the suit was wrongfully or improperly removed thereto, the bond is insufficient, and the petition for removal is properly refused. ,
    Error to the District Court of Licking county.
    On June 29, 1875, the plaintiff, George Bates, brought suit in the court of common pleas of Licking county against the defendant, The Baltimore and Ohio Railroad Company, to recover damages for personal injui-ies sustained by reason of the negligence of a servant of the defendant.
    To the plaintiff’s petition, the defendant on September 20, 1875, filed a general demurrer, which was sustained by the court at its September term 1876. At its February term 1877, no amendment to the petition having been made, the court dismissed the action, and rendered judgment in favor of the defendant. To reverse this judgment, the defendant, on April 13, 1877, filed his petition in error in the district court of Licking county,' by which court, at its June .term 1877, the judgment was reversed, and the cause remanded to the court of common pleas.
    Before any further proceedings were had in the court of common pleas, and on December 1, 1877, the defendant filed therein a petition for the removal of the suit into the circuit court of the United States for the Southern District of Ohio, in pursuance of the provisions of the Act of Congress approved. June 22, 1874, Revised Statutes of the United States, section 639. ..The petition set forth that the plaintiff was a citizen of Ohio, and the defendant a citizen of Maryland; that there was a controversy, in the action, between a citizen of Ohio and a citizen of Maryland; that the amount claimed was five thousand dollars; that the suit had not been finally tried, but was then pending for trial in the court of common pleas ; that the petitioner had made and filed therewith the affidavit required by said Act of Congress and said section thereof; that the petitioner was ready and willing to give such good and sufficient security, as the court might direct, for petitioner’s doing all acts and things required to be done by the provisions of law upon the removal of a suit into the United States court; and that the petitioner offered therewith -its bond executed by it underwits corporate seal, and by Walter C. Quincy and Charles II. Kibler as sureties, conditioned as statéd in the petition. The prayer of the petition was that the bond might be accepted as good and sufficient surety according to the provisions of law; that the suit might be removed into the next circuit court of the United States to be hold in the Southern District of Ohio and that no further proceedings might be had in the case. The affidavit referred to in the petition was the affidavit of John W. Garrett, president of the railroad company, showing the citizenship of the parties, as alleged in the petition, and that he had reason to believe and did believe, that from prejudice and local influence, the defendant in the action would not be able to obtain justice in said court, and therefore made application for removal.
    The condition of the bond referred to in the petition, and filed therewith was in the following words :.
    “Provided, however, and these presents are upon this express condition, that, whereas, the Baltimore and Ohio Railroad Company aforesaid, has filed -its petition in the .court of common pleas, of Licking county, Ohio, for the removal into tile next circuit court of the United States, to be held in the southern district ’ of Ohio, in the sixth circuit, of a cause now pending in the said court of common pleas, wherein the said George Bates is plaintiff, and the said Baltimore and Ohio Railroad Company is defendant, pursuant to the provisions of section 639 (chapter 7, title 13) of the Revised Statutes of the . United States, page 113. Now therefore, if the said Baltimore and Ohio Railroad Company shall enter in said circuit court of the United States, for the southern district of Ohio, on .the first day of its next session, copies of all process against the said Baltimore and Ohio Railroad Company, and of all pleadings, depositions, testimony and other proceedings in said cause, then this obligation shall be void, otherwise to be and remain in full force and virtue.”
    On December 22,1877, at the October term, the court upon hearing the petition» found that the defendant had then no right to have said cause removed to the circuit court of the United States, and ordered the application for removal to be, and the same was dismissed, to which the defendant excepted.
    The defendant afterward filed an answer to the plaintiff’s petition, to which the plaintiff filed a reply, and upon'the issues thus made the case was tried, at the January term 1878. The jury returned a verdict for the plaintiff, and the court rendered judgment thereon in his favor.
    The defendant then filed a petition in error in the district court of Licking county, to reverse said judgment, and it was by that court reversed on the ground that the court of common pleas “ erred in overruling and denying the petition and motion of said railroad company, to remove said action for. trial to the circuit court of the United States for the southern district of Ohio.”
    This proceeding is prosecuted to reverse the judgment o£ the district court.
    
      J. A. Flory and Gibson Atherton, for plaintiff in error :
    1. The petition for removal wa„s-not filed in the state court within the time required by law. The suit was commenced June 29,1875; answer day'was July 31,1875 ; three terms of court passed at which the Case “ could have been tried ” and before it was tried. Ohio Code Civ. Pro. §§ 260, 262, 306, 307, 308, 59, 103; Babbitt v. Clark, 103 U. S. 606. The petition ' for removal was filed too late under the act of Congress of March 3, 1875. Babbitt v. Clark, 103 U. S. 606; United States Statutes of 1874 and 1875, p. 470. The whole of section 639 of Revised Statutes was repealed by the act of March 3, 1875. Burdock v. Hale, U. S. C. Ct. D. of Ind., 1 L. and E. Rep. No. 10-246 ; S. C., 7 Biss. 96; Clippinger's Admr. v. N. V. Ins. Co., 2 Cin. L. Bulletin, 218; Danville R. R. Case, 7 Chi. Leg. News, 241; Chandler v. Coe, 22 Am. Rep.; Smith Com. on Con. Construction, §§ 786, 787; Murdick v. City of Memphis. 20 Wall. 517; United States v. Tyner, 11 Wall. 88; 7 Am. Dec. 99, note; Lorane Plank R. Co. v. Cotton, 12 Ohio St. 263; Babbitt v. Clark, 103 U. S. 612.
    Certainly the provisions of the Act of March 3, requiring the petition for removal to be filed “ before or at the term at which the case could be first tried and before the trial thereof,” is inconsistent with the right to file the petition at a later date. Morse v. Vance, 1 Ohio, 10. The conditions required to be inserted-in the bond for removal by the latter act, are inconsistent with and different from those required in section 639 Revised ■ Statutes. If the act of March 3, did not repeal section 639, which of the conditions-required by both acts should be used ? There are other provisions in the acts so inconsistent as to require a repeal by the latter of the former act. The case was not removable under the 3d paragraph of section 639 Revised Statutes, page 113, even if the court should find that it was not repealed by the acts of March 3, 1875. The petition for removal does not aver that the case has not been tried, while the record shows it has been once finally tried. The Revised Statutes provides that tlie petition for removal should be filed before “ the trial ” of the case. In this case there had been a trial of the case, and a. final trial at that. This change in the Revised Statutes was not made for nothing. The case of insurance Co. v. Dunn, 19 Wall. 214, had already been decided, which it is presumed that Congress had full knowledge of before they enacted the Revised Statutes. “ It is apparent that this change was not the result of accident, but was deliberately made to secure uniformity upon the subject, in view of the conflicting decisions between the Federal and State Courts in the following cases: Ackerly v. Vilas, 1 Abb. U. S. 284, see 24 Wis. 165; Johnson v. Morrell, Woolworth, 390 ; Insurance Co. v. Dunn, 20 Ohio St. 175, and same case, 19 Wall. 214; Bryant v. Rich, 106 Mass. 192.” Whittier v. Hartford Ins. Co., 20 Am. R. 187. This change in the wording of the statutes appears to have been made to get around the construction given to the act of 1867, in 19 Wall.; for if Congress, having full knowledge of that decision, liad intended to follow the act of 1867, they would have worded it the same. The change was apparently made to do away with the injustice resulting from the act of 1867, under the construction given to it by the decision in 19 Wall, as is well illustrated in the case at bar.
    2. The bond and the conditions thereof were not such as was required by the act of March 3,1875. This bond does not contain the provisions that the party removing shall enter in the circuit court “ a copy of the record,” and “ pay all costs that may be awarded by said circuit court, if said court shall hold that said suit was wrongfully or improperly removed thereto.” The bond not containing the conditions, the removal was properly refused. Burdict v. Hale, U. S. Court of Indiana, 1 Law and Equity Reporter, No. 10, p. 246; s. c., 8 Ch. L. N. 192. Even if the third paragraph of section 639 of Revised Statues was not repealed by the act of March 3, 1875, that part of the 639th section relating to the bond is distinct from paragraph 3, as it refers to the other paragraphs also, and the conditions of the bond required by the act of March 3, 1875, being different and inconsistent with the conditions required to be in the bond under the Revised Statutes, repeals the latter; so that, if a removal can be made under the Revised Statutes, the conditions of the bond must bo those, required by the act of March 3, 1875. 20 Am. Law Reg. 38; Torrey v. Locomotive Worlis, 14 Black. C. C. 269.
    3. There was no evidence given to the court to show that the sureties on the bond were sufficient or responsible sureties.
    
      
      Charles H. Ilibler, for defendant in error. .
    1. There is no objection to the petition or affidavit for removal. They followed the third clause of section 639 U. S. Bevised Statutes of 1875. The act of March 3,1875, does not repeal the third clause above mentioned for these reasons, viz.: In the Bevised Statutes of the United States, second edition, 1878, published under authority of another act of Congress, the third clause is reproduced, without any new legislation on the subject. The act of March 3, 1875, does not relate in any part to the case of prejudice or local influence. The latter act does not purport to repeal section 639, in the third clause of it. The language is, “ Sec. 10. That all acts and parts of acts in conflict with the provisions of this act aré hereby repealed.” The third clause of section 639 is not in conflict with the provisions of the act of March 3, 1875. The latter act docs not provide that no controversy is removable other than those specified in the second section, but that certain controversies, therein specified, may bo removed. Barber v. Railway Co., 43 Iowa, 223; Stone v. Sargent, 129 Mass. 503 ; Dillon on Removal, 28 ; Dennis v. City, &c., 3 Woods, 684; Arapahoe County v. Kansas P. Ry. Co., 4 Dill. 277; New Jersey Zinc Co. v. Trotter, 17 Amer. Law Reg. 376.
    2. It is also claimed by plaintiff in error that if clause 3 of section 639 is not repealed by the act of March 3,1875, the application, to remove was not in time. This claim is clearly erroneous. The act of July 27, 1£>66, used the words “trial or final hearing. ” The act of March 2, 1867, employed the words “ final hearing or trial, ” while in the revised statutes, clause 3 of section 639, the words are again “trial or final hearing. ” There would not, therefore, seem to be any design, as claimed, in the transposition of the words in section 639. We might safely adopt the language of this court, in Insurance Co. v. Dunn, 20 Ohio St. 175, 181, which says, “We have no doubt the terms ‘ trial ’ and ‘ final hearing ’ have the same meaning in both acts [1866 and 1867,] and that their transposition in the amendatory act was merely accidental. ” It is said that there. was a trial in the common pleas before the removal papers were filed. There was a demurrer to the petition which was sustained. The plaintiff excepted and took leave to amend, and the cause was continued. At the next term, the plaintiff not desiring to amend, there was judgment for the railroad company on the demurrer. The district court in June, 1877, reversed the judgment of the common pleas, and. remanded the case for further proceedings according to the law. There was no final trial. It was only a preparation for a trial. Vannevar v. Bryant, 12 Wallace, 41, 43 ; Ins. Co. v. Dunn, 19 Wall. 214; Jifkins v. Sweetzer, 102 U. S. 177.
    3. The bond is ¡jrecisely that which section 639 required ; but it is insisted that though it be true that that section allowing the removal of cases of prejudice, &c., is not repealed, the method of procuring the removal, so far at least as the form of the bond is concerned, is that of the act of March 3, 1875. The reasoning therefore is, -that section 639 may be in force for the principal purpose, but is not in force for the method of accomplishing that purpose. There is no such rule of construction. If the bond was defective in form it was amendable. The common pleas, if objection to the form was made, did not regard the objection valid; at least it did not put its decision on that ground. Shall the technical objection now prevail, even if valid % It has been held, that a case of prejudice will not be remanded to the state court on such ground. Dennis v. Alachua, Co., 3 Woods, C. C. 683; 10. Otto, 459, 471.
    4. The objection that no evidence was given that the sureties to the bond were sufficient, was waived.
   Upson, J.

The plaintiff claims that the court of common pleas properly overruled and denied the defendant’s petition for the removal of the suit to the circuit court of the United States, upon the following grounds:

1st. That the petition was not filed in the state court within the time required by law.
2d. That no testimony was given in that court to show that the sureties offered were good and sufficient; and
3d. That the condition of the bond filed with the petition is not in accordance with the law.

' In order to determine whether these objections to the removal of the suit are well founded, it is necessary to examine the Acts of Congress which provide for the removal of causes from the state courts. Section 639 of the Revised Statutes of the United States, in its first clause, provides that a suit against an alien, or by a citizen of the state wherein it is brought, against a citizen of another state, may be removed on petition of the defendant, filed at the time of entering his appearance in the state court.

In its second clause said section provides that when a suit is against an alien and a citizen of the state wherein it is brought, or is by a citizen of such state against a citizen of the same and a citizen of another state, it may be so removed, as against said alien or citizen of another state, upon the petition of such defendant, filed at any time before the trial or final hearing of the cause, if so far as it relates to him, it is brought for the purpose of restraining, or enjoining him, or is a suit in which there can be a final determination of the controversy, so far as concerns him, without the presence of the other defendants as parties in the cause.

The third clause of said section is as follows: “When a suit is between a citizen of the state in which it is brought, and a citizen of another state, it may be so removed on the petition of the latter, whether he be plaintiff or defendant, filed at any time before the trial or final hearing of the suit, if before or at the time of filing said petition ho makes and files in said state court an affidavit stating that he has reason to believe, and does believe, that from prejudice or local influence he will not be able to obtain justice in such state court. ”

Section 639 then provides as follows: “In order to such removal the petitioner in the cases aforesaid must, at the time of filing his petition therefor, offer in said state court, good and sufficient surety for his entering in such circuit court, on the first day of its session, copies of said process against him, and of all pleadings, depositions, testimony and other proceedings in the cause, or, in said cases where a citizen of the state in which the suit is brought is a defendant, copies of all process, pleadings, depositions, testimony and other proceedings in the cause concerning, or affecting the petitioner, and also for his there appearing and entering special bail in the cause, if special bail was originally requisite therein. ”

In 1875 Congress passed the act entitled, “ An act to determine the jurisdiction of the circuit courts of the United States, and to regulate the removal of causes from state courts, and for other purposes. ” United States Statutes at Large, vol. 18, p. 470. This act does not specifically repeal any previous act, but has the general provision, That all acts, and parts of acts, in conflict with thp provisions of this act, are hereby repealed,” and the plaintiff insists that the third clause of section 639 is thereby repealed, and that the suit could only be removed on a petition filed in the state court, before, or at, the term at which said cause could be first tried, and before the trial thereof, ” as provided in the act of 1875. This act was intended by Congi-ess as a revision of many previous acts upon the same subject, and there has been much difference of opinion in the federal courts as to the extent to which it is a substitute for those acts or parts thereof; but its effect in relation to the first, second, and third clauses of section 639 has been conclusively determined by the supreme' court of the United States. In the case of King v. Cornell, 106 U. S. 395, it was decided that the first and second clauses of that section were in conflict with the act of 1875, and were therefore repealed. In the case of the American Bible Society v. Grove, 101 U. S. 610, it was held that the" act of 1875 has not changed the third clause of section 639, and that removals on account of “ prejudice or local influence ” still depend on that section. The provision that a petition for removal on that ground may bo filed at any time before the trial or final hearing of the cause, must therefore be regarded as still in force, and in this case the petition was filed before the final trial.

In reference to the objection to the acceptance of the bond for the reason that no evidence was given that the sureties thereon were good and sufficient,, it is enough to say that the decisions are nearly, if not quite, uniform, that this objection is waived if not made in the state court, at the time of the application for removal. It does not appear that the plaintiff required such proof, and. we hold that the action of the court of common pleas could not be sustained on that ground.

The most serious question in the case is in reference to the bond offered by the defendant. The petition expressly states that the application for removal is made in pursuance of the provisions of section 039, and upon examining the bond filed with the petition it will be found that its condition is in accordance with the requirements of that section, but is substantially different from that required by the act of 1875, in several important particulars, but especially in omitting, the provision “ for paying all costs that may be awarded by the said circuit court, if said court shall hold that such suit was wrongfully, or improperly, removed thereto.” It is insisted by the defendant that in a ease in which the petition for removal is in accordance with the provisions of section 639, the case is also to be governed by the provisions of that section in reference to the security required. The plaintiff claims that the provisions of the act of 1875, so far as they relate to the bond to be given by the petitioner, are substituted for the requirements of section 639, and are to be observed in all cases of removal under that section.

The proper construction of the act of 1875, in this respect, is by no means free from doubt, but no reason is apparent for requiring security for the payment of costs in cases removed under the last act, and not in those removed under the former; and upon considering the different provisions of the two statutes, upon this subject, wo are led to the conclusion that, in regard to the bond required, the act of 1875 was intended as a substitute for, and repeals, that part of section 639 which provides for the security to be given by the petitioner. This point has not been decided, so far as we are aware, by the Supreme Court of the United States, but has been determined by circuit courts in a number of cases. In the case of McMundy v. Connecticut General Life Insurance Compaña/, 9 Chicago Legal News 324, Judges McKennan and Cadwalader held that the act of 1875 takes the place of all former acts in the requirements which it makes for the removal of all causes to which it is applicable; that even though a removal is sought under the third clause of section 639 of the Revised Statutes, the requirement of section 3 of the act of 1875, in regard to the nature of the bond, extends to such a case, as being a case mentioned in section 2 of that act, which to that extent,, at least repeals all prior acts on that subject. This case was approved in the case of Torrey v. Grant Locomotive Works, 14 Blatchford Rep. 269, in which Judge Blatchford held that even if the petitioner claimed the benefit of the longer time allowed by section 639, he must give the bond prescribed by the act of 1875, and that the bond filed in' that case was insufficient because it contained no provision for. costs. This point was also decided in the same way, in the case of Webber v. Bishop, 13 Federal Reporter, 49, in the circuit court of the northern district of New York.

No case has been cited in which a contrary decision has been made.

If then it is considered that the bond in this case is not in accordance with law, we are next to consider whether, for that reason, the state court was justified in refusing to accept it, and thereupon proceeding to trial and final judgment. Upon this point we are satisfied that the action of the court of common pleas is sustained by the decided weight of authority, as well as the general principles of law. A reasonable regard for the rights of the opposite party requires of the petitioner a substantial compliance with the condition imposed by the act of Congress, before he avails himself of the privileges which it confers. This point has also frequently been the subject of judicial decision. In the case - of Torrey v. Grant Locomotive Works, supra, it was held that where the bond contained no provisions for costs the suit was not properly removed. In the case of McMundy v. Connecticut General Life Insurance Company, supra, it was held that the filing of the bond conditioned as required by the act of 1875, is a condition precedent to the removal of the cause to the federal court, and that if the required bon'd has not been filed, that court has no jurisdiction.

In the case of Burdick v. Hale, in the circuit court for the District of Indiana, 7 Bissell, 96, although the state court had accepted the bond, and ordered that no further steps be. taken in the cause in that court, Judge Gresham held, on a motion to remand the case, that, as the bond contained no provision for the payment of costs, the surety would be liable for no costs if the suit should be sent back to the state court j that the defects in the bond could not be cured by amendment in the circuit court; that the federal courts have no power to dispense with, modify or change any of the provisions of the statutes authorizing the removal of causes from one jurisdiction to the other, and that the jurisdiction of the state court over a controversy rightfully in its possession, as in that case, could not be dislodged except by'fully complying with the requirements of the act of Congress.

Other decisions to the same effect might he cited. We are of opinion that the court of common pleas would not have been justified in accepting the bond offered by the defendant.

Judgment of the district court reversed, and that of the court of common fleas affirmed.  