Page:Federal Reporter, 1st Series, Volume 10.djvu/319

ALDBICH ». CBOOCH. 807 �priority over it on the docket, it may still have been in a condition where it eould have been tried and heard, within the meaning of the statute. The meaning of this statute is not that the court in its reg- illar order, if it proceeded in that way, did not take up the case, but where the court could not take up the case and hear and try it, what- ever might be the understanding as to other cases, or of the counsel who were employed in other cases. That seems to be the meaning of the language of the statute, "before or at the first term at which the cause could be tried, and before the trial thereof." This was the construction put upon this clause of the statute in the cases which have been cited, and it was the construction by this court in Kerting v. American Oleograph Co., ante, 17, where one of the parties had a right to set the case down for hearing and did not. Now, in one sense, it had not been set down for hearing ; but the reason why it was not was because the counsel did not so choose. It was not com- petent for a party to decline to set the case down for hearing and then allow a term to pass and make an application subsequently for a removal of the cause. �The application made under the act of 1867 clearly is not within the statute. The application for removal was made by Croueh, one of the defendants, and the only defendant in court. He is a citizen of Illinois. The plaintiff, against whom this application is made, is a citizen of South Carolina, and the statute does not permit a citizen of the state in which the suit is brought to make an application to remove on aecount of prejudice, but only the citizen of another state, where the suit is between such citizen and the citizen of the state in which the suit is brought. This case will have to go baek to the state court, on the ground that the case bas not been removed from the state court. Bible Society v. Grave, 101 U. S. 610; Babbitt v. Ciark,103 U. S. 606; Gurnee v. County of Brunswick, 1 Hughes, 270 ; Murray y. Holden, 1 McCrary, 341; [S. G. 2 Ped. Eep. 740;] For- rest y. Keeler, 17 Blatehf. 622; Kerting v. American Oleograph Co., ante, 17. �Note. The act of 1875 requires the petition to be made and flled in the state court before or at the term at which the cause could be flist tried on its merits, and before the trial thereof. American Bible Society v. Grave, 101 U. S. 610 ; Ames v. Colorado Cent. R. Co. 4 Dill. 260 ; McLean v. Chicago & St. P. R. Co. 16 Blatchf. 319; Ftilton v. Golden, 20 Albany Law J. 229; Mun-ay V. Holden, 2 Fed. Ref. 740 ; Hvddy v. Havens, 5 Cent. Law J. 66 ; Taylox v. Rocke/eller, 7 Cent. Law J. 349. �It is the evident intention of the act of March 3, 1875, § 3, that if, under the ��� �