Whitehouse v. Continental Fire Ins.

The rules taken must be dismissed. The aot of March 3, 1875, section 3, requires the petition for removal *499to be filed “before or at the term at which such cause could be first tried.” The causes here involved, were not at issue, nor had any step been taken to put them at issue, when the petition was filed. In that condition they could not be tried. The citation from “Buskin’s Indiana Practice” — “We understand that Justice Davis, when sitting in circuit for the district of Indiana, held that the application for removal must be made at the first term at which the cause could be put at issue” — is too uncertain to be regarded as authority. Much more important are the cases of Scott et al., Trustees, v. Clinton & Springfield R. Co. 8 Chicago Legal News, 210, (6 Bissell, 529,) and Michigan B. Co. v. Andes Insurance Co. 9 Chicago Legal News, 84, in which it was held that, inasmuch as the canse cannot be tried, until the issues are made up, the application is in time if it come before the pleadings are completed, or the next term following their completion. In the valuable note to Taylor v. Rockefellow, Am. Law Reg. (N. S.) vol. 18, No. 5, p. 313, the same judgment is expressed by the intelligent author.

This construction is consistent with the spirit of the statute, as well as with its terms. The object in limiting the time for application is to guard against loss of opportunity for trial, from delay in making it. Where, as here, it is made before any step has been taken towards forming an issue, no such loss can result.

But these applications are within the terms of the act of 1867, providing for causes in which local influence or prejudice is likely to defeat the ends of justice, Bev. St. § 639; Dillon on “Bemoval of Causes,” 22, 23, 25, as well as that of 1875; and they might, therefore, have been made at “any time before trial or final hearing.” Insurance Co. v. Dunn, 19 Wall. 214; Vannever v. Bryant, 21 Wall. 41. There has been no express repeal of this provision of the statute of 1867, and there does not seem to be any by implication. Dillon on “Removal of Causes,” 25; Cook v. Ford et al. 16 Am. Law Reg. (N. S.) 417; Zinc Co. v. Trotter, 17 Am. Law Reg. (N. S.) 376. Begarding it as in force, all question respecting the defendant’s right to trial here is removed.

The other matters objected to are immaterial.