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
, 461
FORREST V. EDWIN FORnEST HOME.
New York, that "at any time after the joinder of issue, and at least 14 days before the commencement of the term, either party may serve a notice of trial; that at least 12 days before the commencement of the term the party serving the notice must file with the clerk a writ of issue; and that the clerk must thereupon enter the cause upon the calendar according to the date of the issue." It is provided, by section 980 of the same code, that either party who has served the notice may bring the issue to trial, and proceed in the absence of the adverse party. The place of trial of this action was the county of Westchester, and the place of trial of the iRsue in it was a circuit court to be held in that county. The plaintiff shows that after tlie joining of such issue, and prior to such order for removal, circuit courts were held in said county of Westchester, commencing, one March 3, 1878, one June 3, 1878, one September 16, 1878, one December 9, 1878, one March 3, 1879, one June 2, 1879, and one September 15, 1879. The defendant shows that since issue was joined the plaintiff has procured seven commissions to six different places to examine witnesses, the last of which was procured" November 12, 1879; that none of them have been returned; that the suit was noticed for trial for the first time for a term of court commencing December 15, 1879; and that it was never before noticed for trial or placed on the calendar of the court for trial. The plaintiff contends that as either party could have noticed the cause for trial at anyone of the terms named, and as there was no legal obstacle to the noticing of the cause by the defendant, and no stay of proceedings in the orders for commissions, or otherwise, the removal is too late. The defendant contends that as the cause could not be tried, under the statute of New York, until it was in fact noticed for trial and placed upon the calendar, the removal was in time. The defendant cites the case of Warner v. The Pennsylvania R. 00. 13 Blatch. C. C. R. 231. But in that case there were stays of proceedings which prevented a trial. In Pettilon v. Noble, 7 Bissell, 449, cited by the defendant, it would appear
462
FEDERAL REPORTER.
that the issue was not a triable issue, after the reversal, until the defendant had notice that the plaintiff desired the issue to be reinstated as a triable issue. This is a different provision from that of the Code of New York. The intent of the act of 1875 is plainly to require prompt action· on the part of a party desiring to remove a cause. Under act of September 24,1798, § 12, (1 U. S. St. at Large, 79,) as embodied in section 639 of the Revised Statutes, it was necessary to apply for the removal at the time of entering an appearance in the state court. Under the acts of July 27, 1866, and March 2, 1867, (14 U. S. St. at Large, 306, 558,) as embodied in the same section of the Revised Statutes, th'e application could be made at any time before the trial or final hearing of the suit. Under the act of 1875 the application must be made, not only before the trial of the cause, but before or at the term at it "could be first tried." In Knowlton v. Oongress et Empire Spring 00. 13 Blatch. Circuit Court Rep. 170, the plaintiff removed the cause, and the defendants moved to remand it. It was held that where 'either pa,rty could not.ice the cause for trial at a term, that term must be considered the term at which the cause could be first tried. In Stough v. Hatch, 8 Reporter, 7, the cause was noticed for trial by the. plaintiff, and placed on the calendar, but not tried, both parties having consented that it go off for the term. The defendant then removed it, and the plaintiff moved to remand it. The motion was granted, on the ground that the term in question was the term at which the cause could be first tried, and that t4e want of preparation of the parties, and. their consent, could not affect the question. A practically mutual consent not to put a cause on the calendar would seem to amount to the same thing as a consent to have a cause go over the term. In Gurnee v. The County of Brunswick, 1 Hughes, 270, 271, Chief Justice Waite says, in reference to the statute in question: "A cause cannot be tried until in some form an issue has been made up for trial. The pleadings or statements
FORREST V. EDWIN FORREST HOME.
463
necessary to make the issue are regulated by the practice m! the court where the trial is to be had. As soon as the issue, is made up the cause is ready for trial. The parties and the Court may not be ready. but the cause is. The first term. therefore. at which a case can be tried is the fu'st term at which there is an issue for trial. An application for removal. to be in time, must be made before or at this term." In Ames v. Colorado Central R. Co. 4 Dillon, 260, 263. it is said that the term referred to in the act of 1875 "appears to be that at which the cause may be heard or tried on the merits. according to the practice of the court, without reference to the special circumstances of the case, as whether the parties are ready for trial, and the like." . In Fulton v. Golden, 9 Central Law Journal, 286. it was held that a removal was too late, where an equity cauee being at issue, on answer and replication, and the practice allowing either party to notice it and bring it to hearing, and where under the practice the testimony could have been taken, and the cause noticed for hearlng in eight months from the issue, neithl,'ll' party had moved in it, and eight terms had elapsed before the petition for removal was filed. Although the plaintiff in the present case did not notice the case for trial at an earlier term, the defendant could have done so. The plaintiff had a right to regard the defendant as having waived his right to remove the cause, when. in the absence of any stay, the defendant did not remove the cause before or at the first term at which the cause, being at issue and triable on the merits, the defendant might have noticed it for trial. The proper construction of the statute is such as to make it necessary to hold that the removal in this case was too late. Points are raised by the plaintiff as to the value of the land sued for, and as to whether the petition for removal, not being framed to remove the whole suit, is of any avail under· the act of 1875, and as to whether the petition makes out a case for removal under the acts of 1875, and as to whether the suit is not removable. in whole or in part, on the petition of f
the petitioning defendant alone under the act. essary to pass on those points. The motion to remand is granted.
It is not neo-
IN (District Court,
RE GROOME.
w: D. Pennsylvania.
March 20, 1880.)
B.u."'KRUPTCy-SCHEDULE OREDITOR-FAILURE TO HECEIVE NOTICE OF ADJUDICA'rION-HETURN OF SERVICE UPON THE WARRANT IN BANKRUP'fcY.-An adjudication in bankruptcy will not be set aside more than one year and nine months after the filing of the bankrupt's petition, upon the application of a schedule creditor, on the ground that such creditor had not received notice of the adjudication, and, as far as he was able to learn, no such notice had been mailed or otherwise sent to him, in the absence of an averment of want of actualll;llowledge of such adjudication at or near the date thereof, where the return of the marshal to the warrant in bankruptcy showed due service of the notice of adju· dication upon the moving creditor. SAME-ALLEGATION OF RESIDENCE-AMENDMENT.-The averment of such moving creditor that, at the time of the filing of the petition in bankruptcy and at the time of the said adjudication, the bankrupt was not a resident of or doing business in the judicial district where the bankruptcy proceedings were instituted, does not traverse the allegation of the petitioning bankrupt that he has carried on business in said judicial district for the six months next immediately preceding the filing of his petition, nor will such creditor be permitted to amend his petition in this respect. SAME-EXAMINATION OB' BANKRUPT-CREDITOR WITH PROVABLE DEBT. -A creditor who has a provable debt has a right to examine the bankrupt, upon an application for a discharge, although such debt has not been in fact proved.
In Bankruptcy. Sur rule upon petition of William T. Carter to show cause why the adjudication in bankruptcy should not be set aside, etc. ACHESON, J. On the ninth day of February, 1880, William T. Carter, a creditor of Samuel W. Groome, the bankrupt, presented his petition, in which, after averring that it was the duty of the said Groome to cause ,notice of his adjudication in bankruptcy to be ser,ved on the petitioner through the marshal, he alleges that "no such notice, however, was
IN RE GROOME.
4:65
received by the petitioner, nor, as far as he has Deen able to learn, was any such mailed or otherwise sent to him, although the residence of the petitioner was well known to said Samuel W. Groome at and before the presentation of the said Groome's petition in bankruptcy." The petition then proceeds in these words: "Your petitioner further shows that at the time of the filing of the said petition in bankruptcy, and at the time of the adjudication aforesaid, the said Samuel W. Groome was not a resident of or doing business in the western district of Pennsylvania, but was residing, and had a long time prior thereto resided, at Philadelphia, in the eastern district, and carried on any business in which he may have been engaged in that city. Your petitioner, therefore, is advised' and avers that the presentation of said petition in bankruptcy and the adjudication thereon were irregular and void, inasmuch as this honorable court had no jurisdiction to take cognizance of said petition, for the reason that the said petitioner was neither a resident of nor carrying on business in the district in which the same was presented." The prayer of the petition is that the said adjudication may be declared null and void, and wholly vacated and set aside. Upon the presentation of this petition a rule was obtained upon the bankrupt to show cause why the prayer thereof should not be granted. At the return of the rule on March 6, 1880, the bankrupt filed an answer, and at the same time moved the court to dismiss Carter's petition, which motion was argued by the counsel of the respective parties. Other motions were made and argued at the same time, but the motion to dismiss Mr. Carter's petition is to be first considered and disposed of. Samuel W. Groome filed his petition in bankruptcy on the twenty-seventh day of April,1878. He therein states his residence to be the city of Philadelphia, but alleges that he has carried on business in the. western district of Pennsylvania,at Williamsport, for six months next immediately preceding the filing of his petition. Upon the face of the petition v.l,no.7-30
