RUTHERFORD V. PENN. MUT. LIFE IN S. 00.
457
the court is obliged to pass upon without that consideration which is desirable; and the policy of the law is always to provide ample means to a, review or reconsideration of the questions which may arise in the course of a jury trial, and to reserve to the court a right, upon a reconsideration, to set aside the judgment or modify it, if the ends of justice and seem to require it. Therefore, I think that, under the section 726, the party had a, right to ma'ke his motion for a new trial. But there is another section that has been called to my attention-section 987 of the Revised Statutes. This section still further provides for motions of this character, and it applies to the case where a party is not prepared at the time of trial so immediately file his motion. It provides for giving time within which that may be done. It says: "When a circuit court enters judgment in a civil action, either upon a verdict or on a finding of the court upon the facts, in cases where such finding is allowed execution may, on motion of either party, at the discretion of the court, and on such considerations for the security of the adverse party as it may judge proper, be stayed 42 days from the time of entering judgment, to give time to file in the clerk's office of said court a petition for a new triaL" · · · · And then follows a provision, that "if such petition is filed within said term of 42 days, with a certificate thereon from any judge of such court that he allows it to be filed, which certificate he may make or refuse, at his discretion, execution shall, of course, be further stayed to the next session of said court. If a new trial be granted, the former judgment shall be thereby rendered void." Now this is not the only section under which the party can apply for a new trial. His right to apply is independent of this section. This provides for a case where he desires to obtain from the court an extension of the usual time within which to make his application for a new trial; and in that case, where he gets such time merely to apply, he must show that he has presented his petition, and that it has 'been allowed in accordance with the provisions of the section; 'but.
458
FEDERAL REPORTER.
if he makes his motion for a new trial without asking for the time, then he can make it independent of section 987, and is not bound by the provisions of that section. In other words, the court had a perfect right to entertain the motion for a new trial; it did entertain it, and suspended the execution until it should be determined. Now the judgment cannot be said to have been fina,lly rendered until the determination of the motion for a new trial in this case. That is very clear, when it is considered that the motion might have been sustained as well as overruled, and in that case the effect of the action of the court would have been as if there had been no judgment, or it had been the other way. And, if the doctrine contended for by the plaintiff should be sustained, it might result that there would be a case pending in the supreme court on appeal from a judgment which was never rendered, in point of fact, in this court. The construction of section 987 will illustrate what I have said upon this point. Under that section, where a party applies for time to file his application for a new trial, the motion, as you will perceive, may be granted at the next term; and the extension shall, of course, be further stayed until the next session of the court, if the party is allowed to file his petition. Now, suppose in the meantime he has taken his writ of error and gone to the supreme court, and has obtained, perhaps, a hearing and decision in the supreme court, and after all that a motion for new trial comes up in the court below and is sustained. It is manifest that such is not the intention; in other words, it would be an anomaly to provide for an appeal or writ of error from a suspended or inoperative judgment. I think it is fair, although it is a liberal construction of the statute, to Bay that the time begins to run from the day when the motion for a new trial is overruled; and that is the construction I give it in a case where the application has been made in time, and execution suspended. Of course, if I am wrong, a motion to set aside the supersedeas can be made in the supreme court, I apprehend, and the question there be finally determined.
FORREST
V.
EDWIN FORREST HOllE.
459
You may present your bond, and the court will pass upon the sufficiency of the sureties. Citing-Silsby v. Poote, 20 How. 290; Brockett v. Brockett, 2 How. 238; G1'een v. Van Buskirk, 5 Wall. 307; Telegraph Co. v. Eyser, 19 Wall. 419; Sage v. Central Railroad, 93 U. S. 412-417; Kitchen v. Randolph, 93 U. S. 86; Carnbuston v. United States, 95 U. S. 285.
FORREST v, EDWIN FORREST HOME and others.(Circuit Court, 8. D. New York. March 8, 1880.) REMOVAL OF
CAUSE-ACT MARCH 3, 1875.-In the state of New York a cause cannot be removed under the act of March 3, 1875, after the expiration of the term in which the same could have been noticed for trial, under the provisions of the New York Code.
Motion to remand cause to the state court. John Townshend, for plaintiff. Robert W. De Forest, for defendant. BLATCHFORD, J.This is an action of ejectment, brought in the supreme court of New York, to recover possession of a piece of land in the city of Yonkers. The complaint put in the state court alleges seizure and possession in fee by the plaintiff, and ejection of the plaintiff, and withholding of possej:;sion from him by defendants; and demands judgment that the plaintiff has an estate in fee in the premises, and that he recover possession thereof, and his damages for the withholding thereof. The Edwin Forrest Home answered, denying the allegations of the complaint. The other two defendants did not appear, or answer, and are in default for want of an answer on the twenty-third of January, 1878. The answer of the Edwin Forrest Home was put in on that day. The cause was at issue as to the Edwin Forrest HOIJle on that day. Subsequently and on the ninth of December, 1879, th& Edwin Forrest Home filed in the state court a petition set"'f'ee flTarklJJell v. Braun, ante, 351
460
FEDERAL RiPORTER.
ting forth, among other things, that the plaintiff was at the commencement of the suit and is a citizen of the state of Massachusetts, and that the Edwin Forrest Home was at the commencement of the suit and is a corporation created by the state of Pennsylvania and a. citizen of that state; that "this is a suit in which there can be a full and final determination of the controversy between the plaintiff and your petitioners, the Edwin Forrest Home, without the presence of the otber defendants as parties in the cause;" that the defendants Keeler and Lawrence were, at the commencement of the suit, and are both of tbem, citizens of the state of New York; that both of them are in default for not a.nswering the complaint; and that the petition "is made and presented before or at the term at wbich said cause could first be tried, and before the trial thereof." The prayer of the petition is that the suit, "so far as concerns your petitioners, the said the Edwin Forrest Home, be removed into the circuit court of the United States for the southern district of New York." On the petition, and a bond, the state court entered an order, on the ninth of December, 1879, accepting the petition and the bond, and ordering "that this action, so far as concerns the said defendant, the Edwin Forrest Home, be and the same hereby is removed for trial from this court into the next circuit court of the United States, to be held in and for the southern district of New York, in the second circuit, and that this court proceed no further therein." The removal in this case is not one provided for by subdivision 2 of § 639 of the Revised Statutes of the United States, because the plaintiff is not a citizen of New York. The removal must, therefore, be upheld, if at all, under the act of March 3, 1875, (18 U. S. St. at Large, 470.) The plaintiff moves to remand the cause to the state court, on the ground that the removal was not applied for in time, under section 3 of the act of 1875, which requires that the application shall be made "before or at the time at which said cause could be first tried, and before the trial thereof." It is provided, by section 977 of the Code of Procedure of
