
    The Home Life Insurance Company v. Lucinda M. Dunn, Administratrix of John C. Dunn, deceased.
    1. An order removing a cause from the State court to the circuit court of the United States under the act of Congress of March 2, 1867, is a final order within the meaning of the civil code, and may be reviewed upon petition in error.
    2. The words “final hearing or trial ” in said act are equivalent to “ trial or final hearing; ” and after a suit has been determined in the court of common pleas on its merits, it is not transferable under the act of Congress, although an appeal may have been taken to the district court, or a second trial allowed under the statute in the court of common pleas.
    Motion for leave to file a petition in error to reverse the judgment of the district court of Hamilton county.
    The defendant in error sued the plaintiff in error in the court of common pleas of Hamilton county on a policy of insurance. The issues in the case were tried to a jury, who returned a verdict in favor of the plaintiff. After judgment, the defendant below, now plaintiff in error, demanded a second trial under the statute, which the court allowed, and fixed the amount of the undertaking to be given to obtain such trial. The defendant gave the undertaking within the time prescribed by the statute.
    
      At the next term of the court the defendant filed a petition under the act of Congress of March 2,1867, for the re-, •moval of the cause to the circuit court of the United States. The steps prescribed by the act of Congress for the removal of causes having been taken by the defendant, the court of common pleas ordered that the surety offered be accepted, and that no further proceedings be had in that court in the cause.
    The transcript having been regularly filed and docketed in the circuit court of the United States, the plaintiff moved to dismiss the cause for want of jurisdiction. This motion was overruled by the circuit court; and the plaintiff, by leave of that court, filed therein her amended petition, and the defendant filed its motion to strike the amended petition from the files. This motion is not yet disposed of.
    On petition in error by the plaintiff, the district court of Hamilton county reversed the order of the court of common pleas removing the cause, and the object of the present petition in error is to obtain the reversal of the judgment of the district court.
    
      Hoadly, Jackson & Johnson, with McGuffey, Morrill & Strunk, for plaintiff in error:
    1. It is obvious that if rightly removed to the federal court, the cause is now pending there. This court will not therefore require us to submit to a trial in the common pleas, and to another hearing on error in the district court, before considering the rightfulness of the removal. The order of removal was a final order, and the order reversing it is a final order, and this court will not treat the case according to rules applicable where reversals are to result in mere new trials. It is true that the company may get a verdict in the common pleas, and thus, perhaps, end the controversy. And yet, if the case has been properly removed, the common pleas has no jurisdiction. Stevens & Dwight v. Phoenix Ins. Co., 41 N. Y. 149. How, then, will such a judgment end the controversy % Or how will it prevent the plaintiff from claiming in the circuit court the benefit of Judge Swayne’s decision that the case is rightly there. But even if it would, our right is to have the benefit of the federal forum: our right is to escape the common pleas, whose jurisdiction is, ipso facto, ousted by filing the petition for removal. This court will not l’efuse to allow a wxfit of erx’or and thus coxnpel us to give xxp this right, merely because of the possibility of a verdict for us in the common pleas: it is a matter of right, not of discretion.
    
      2. The case was rightly removed to the federal coxxrt under the act of March 2, 1867, vol. 14, Stat. at Large, 558-9. The time within which the right to remove must, under this act, be exercised is “ at any time before the f nal healing or trial of the suit.”
    The allowing of the demand for second trial made it perfectly certain that the first was not the “final trial.”
    3. After actual removal, it is too late to get the case reinstated in the State court by any action of the State court. The x’emedy, if the removal was wrongful, is by application to the federal court, where the cause is pending, and by writ of error thence in the supreme court of the United States. Ackerly v. Vilas, Am. Law. Reg., April, 1869, p. 229.
    4. And this is so, for the reason that when the cause has actually been removed, it is within the control of another court over which the State courts have no control. No more than parties once divorced can be remarried by writ of error, can causes once removed be reinstated by writ of error. And for the further reason that the cause has been removed into the jurisdiction which has the final determination of the question, viz.: the federal courts. Should this court here now refuse to reverse, the supreme court of the United States would reverse the action of this court, if, in its judgment, erroneous. The federal, not the State courts, have the final decision. Gordon v. Longest, 16 Peters, 97; Kanouse v. Martin, 14 How. 23; Same v. Same, 15 How. 198.
    5. The decision of the circuit court is conclusive upon the subject, and makes a case of res judicata which can only be disturbed by a writ of error in the supreme court of th6 United States.
    
      6. Having submitted to the decision of the circuit court and amended her petition in that court, the plaintiff is estopped to dispute the jurisdiction of that tribunal.
    7. The fact that the plaintiff in error is a corporation does not deprive it of this remedy of removal. See all the cases cited and examined in Stevens & Dwight v. Phoenix Ins. Co., 41 N. Y. 149. As a foreign corporation it is a citizen of the State where incorporated.
    8. The case of Justices v. Murray, 9 Wallace, 274, does not conflict with our view. The federal courts are, it may be true,, prohibited from trying this case again otherwise than by jury. The injunction upon them, so to try, if it exists, .it is to be presumed, they will obey.
    9. We answered the petition in error in this case so as to present the proceedings in the circuit court upon the record. This was in accordance with the old practice. 2 Tidd’s Practice, 1116,1120. But for fear that this might not be permissible under the code, we also moved to dismiss and strike from the files the petition in error, and by bill of exceptions have made the facts stated in the answer to the petition in error part of the record.
    
      Standish & Brown for defendant in error:
    1. The order of the district court sought to be reversed ‘here was an interlocutory order. The case is pending on its merits in the common pleas, awaiting the result of another trial, and this court cannot entertain this petition at this time to consider the propriety of the interlocutory order of the district court. Longworth v. Sturges and Anderson, 6 Ohio St. 143; Herf & Co. v. Schultze et al., 10 Ohio, 269.
    2. The order of the common pleas that the case be removed to the United States court was the final order that disposed of the case in the State court until it should be disposed of on error. This gave the district court jurisdiction to hear the case on error. The case having been ordered to the United States court did not divest the district court of jurisdiction. Hadley v. Dunlap, 10 Ohio St. 1; Ackley v. Vilas, 24 Wis. 165.
    
      If the district court erred in entertaining jurisdiction in the case because the common pleas had ordered' its removal, then this court cannot entertain jurisdiction of it, for the jurisdiction of the district court, in error, over the orders of the common pleas, is not less complete than the jurisdiction of this court over the orders and decrees of the district court; and if the district court erred in considering the case because it had been either correctly or incorrectly ordered to be removed to the United States court, this court would repeat the error by granting the present motion for leave to file a petition in error.
    3. The district court not only had jurisdiction to consider this case, but it made that disposition of it which the law required. The application for removal to the United States court was too late to be within the terms of the law. Ackley v. Vilas, 24 Wis. 165.
    Second trials are given in lieu of appeals. The law was framed to relieve the district court. See title of act, S. & C. 1155. The same proceedings in substance are required for a second trial that were required for an appeal. A motion for a new trial is overruled; the final verdict of the jury is entered, and a final judgment upon all issues in the case; and continues in the same force in all respects, and particularly as a lien upon the debtor’s realty, as if the case had been appealed. Code, see. 708, S. & O. 1160.
    All trials and judgments are either final or interlocutory. 3 Bla. Com. (Kerr’s Ed.) 427. This trial and judgment, obtained before the motion for removal was made, were not interlocutory, but final; and the judgment was then in full existence, or it would not have been at that time a lien upon the debtor’s realty; it was simply stayed by bond as if the case had been appealed. The final trial need not be the last trial that can be had in a case.
    The law of March 2,1867, is an amendment to that of July 28, 1866, and the two must be construed together so as to harmonize. The act of 1867 was passed to extend to a non-resident plaintiff the privilege which before was vested only in the non-resident defendant. Any other construction would make the law of 1867 operate as a repeal of the law of 1866, because if it grants a later period at which a motion for removal can be made than under the law of 1866, there would be a different remedy granted to the non-resident defendant from what it was before, and this would repeal the former law. Moore v. Vance, 1 Ohio, 1-10 ; 11 Ohio, 134-7.
    4. The plea that what was done in the United States court is an estoppel to the jurisdiction of the State court, assumes •that the order of removal was erroneous. But our appear.ance in the United States court did not vest that court with appellate jurisdiction over the case, because consent cannot give that court a jurisdiction not vested in it by law. Mills v. Brown, 16 Peters, 525.
    As to the effect of the pendency of different suits at the same time between the same parties, concerning the same subject-matter, see Bowen & Seymour v. Joy, 9 Johns. 219; Welch v. Dirken, 12 Johns. 99; Hate v. Holly, 3 Wend. 263; Salmon v. Walton, 9 Dana, 422; Colt v. Partridge, 7 Metc. (Mass.) 570; Haup v. Granger, 1 Conn. 154; Ralph v. Brown, 3 Watts & Serg. 399.
   White, J.

The order of the court of common pleas removing the cause from that court, was a final order which the district court was authorized to review on error. Code, secs. 512, 513, S. & C. Stat. 1099. The order determined the action in that court and prevented a judgment, and, if erroneous, affected the plaintiff’s substantial rights.

Nor was the right of the plaintiff to have the order reviewed on petition in error, impaired by the action of the defendant below in filing the transcript of the proceedings in the circuit court, nor by the fact that the motion of the plaintiff to dismiss the cause for want of jurisdiction in that court had been overruled.

The question before the district court, on the petition in error, was precisely the same as that raised by the petition of the defendant below, for decision in the court of common pleas, viz.: whether the removal of the cause from the State court to the circuit court was authorized by law. The juris diction of the district court was not dependent upon the way the question had been decided in the court below. The authority of the district court was to revise the action of the subordinate court, and, as such action was found to be in accordance with or against law, to affirm or reverse it.

The main question in the case is, whether the removal of the cause from the court of common pleas to the circuit coui’t was authorized under the act of Congress of March 2, 1867.

The act provides that, in the cases specified, the party entitled to the removal may file his petition therefor in the State court, “ at any time before the final hearing or trial of the suit,” and, on his compliance with the terms prescribed, it is made the duty of the State court to accept the security offered and to proceed no further in the suit. 14 U. S. Stat. at Large, 559.

This act is an amendment of the act of July 27,1866, in which the language used is, that the petition may be filed “ at any time before the trial or final hearing of the cause.” Id. 307.

"We have no doubt the terms “ trial ” and “final hearing ” ought to have the same meaning in both acts, and that their transposition in the amendatory act was merely accidental.

The ground of the reversal of the order of the court of common pleas was, that the petition of the defendant below for the removal of the cause was not filed until after “ the final hearing or trial,” and that the case, therefore, did not come within the act of Congress. The correctness of the decision turns on the meaning of these terms as used in the act.

The terms, it seems to us, were intended to embrace actions at law and suits in equity — the word “ trial ” having reference to an action at law, and the words “ final hearing ” to a suit in equity; and that by “ the final hearing or trial of the suit,” is meant a hearing or trial upon the merits, such as results in a final judgment in an action at law, and a final decree in a suit in equity.

The act of Congress was, doubtless, intended to have the same operation in all the States, irrespective of the difference that may exist in the modes provided in the several States for examining, in the appellate court, questions decided in the court below.

In this State, after final decree, equity cases are appealable to the district court, on the appellant giving notice and entering into an undertaking as required by the statute. In cases in which either party has the right to a trial by jury, there can be no appeal, but either party, after final judgment, by giving notice of his demand, and entering into an undertaking as required by the- statute, is entitled to a second trial. If no undertaking is given, the demand for a second trial and the notice of appeal go for nothing; and the judgment or decree is conclusive upon the rights of the parties. Such, also, is the effect of the judgment or decree from the time of its rendition to the giving of the undertaking. And notwithstanding the appeal or the right to a second trial may be perfected, the lien of the judgment or decree is continued until the determination of the cause on appeal or second trial.

It is competent for the legislature to take away the right of appeal and of a second trial. If this were done there would be no ground for the removal of the cause under the act of Congress.

The true construction of the act does not, we think, thus make its operation depend upon whether the legislation of the State allows or does not allow the exercise of appellate jurisdiction after a common-law trial, or the final hearing of a suit in equity in the court of original jurisdiction.

To bring this case within the act of Congress would be to allow the non-resident party to experiment with the jurisdiction of the State courts. If the trial should result in his favor, it would bind his adversary, but if it should result adversely to him, he could escape the effect of the litigation by removing the cause to another jurisdiction. To lead us to such a conclusion the intention ought to be expressed with irresistible clearness.”

The conclusion at which we have arrived in this case, is in accordance with the decision of the supreme court of Wis consin in Ackerly v. Vilas, 21 Wis. R. 165. The judgment of the court in that ease was pronounced by Paine, J., in an able opinion, to which we refer for a more elaborate discussion of the questions.

We are unanimous in the opinion that there was no erroi in the judgment reversing the order of the court of common pleas. The motion for leave to file a petition in error is, therefore, overruled.

Brinkerhoee, C.J., and Scott, Welch, and Day, JJ., concurred.  