Page:Federal Reporter, 1st Series, Volume 9.djvu/379

364 FEDERAL REPORTKR. �tried at the present term, and no trial has been had." The order of removal was made without any prior notice to the attorney for the defendants. ihere v;-as a trial term of the state court whleh comraenced the first Monday of May. The plaintLff, on the fifteenth of April, placed the cause on the calendar of the court for that term. There is nothing to ahow how long that term continued. The motions for commissions were adjourned f rom time to time till Septem- Ler 5th. A trial term of the state court was held in the month of June, 1881. It does not appear that the case was noticed for trial for that term by either party. That term commenced June 6th and ended prier to September Ist. The defendants move to remand the suit. �It is plain that the suit was not removed in time. There was nothing to interfere with its being tried legally at the June term. The notice of motion for a commission and a stay was not a stay. The plaintiff was bound to remoye the suit, at least, bef ore the end of the June term, if he was to remove it at all. Forrest v. Keeler, 17 Blatchf. 522. �The plaintiff contends that the question of time oannot be considered in this court, because the state court passed upon it in its order. It is true that the state court adjudicated upon it, but it did so ex parte, and without a hearing of the defendants. The act of March 3, 1875, (18 St. at Large, 470, § 5,) provides that if, in any siiit removed to this court, it shall appear to its satisfaction, at any time after the suit is removed, that it "does not really and substantially involve a dispute or controversy properly within the jurisdiction" of this court, this court shall proceed no further therein, but shall remand it to the court from which it was removed. This provision has recently been construed by the supreme court in Bahbitt v. Clark, 103 U. S, 606, 610. It is there said by the court that a decision by the circuit court that the necessary steps were not taken to remove the case, is a decision of the question of its jurisdiction ; and that the question of whether a removal was made in time, is a question of jurisdiction. In that view, it is for this court to determine its jurisdiction, how- ever that question may previously have been decided by the state court. �The motion to remand is granted. ��� �