Page:Federal Reporter, 1st Series, Volume 9.djvu/451

436 FEDERAL REPORTBE. �time during the term in which the cause "could be first tried, and before the trial tliereof." This right exista during the term of the court without regard to the lerigth of the term. Henee, in applying the act of 1875 to the Louisville chancery court, if there is any period of time which is regarded in the law as equivalent to a term of that court, the right to file a petition and have a removal to this court should continue during such period. �The Kentucky Gode (section 772) provides that the Louisville chan- cery court "shall have such control over its judgments for 60 days as circuit courts have over their judgments during the term in which they are rendered." Litigants may, I think, file their petition for removal under the act of 1875, in the Louisville chancery court, before the trial of a cause, and within 60 days after the cause is first triable by the law and practice of that court. This is a reasonable rule, and one -which is clearly within the spirit of the act of 1875; and, as the removal in the case under consideration is within that time, I conclude the objection urged is not well taken. �It is also insisted that the judgment of the Louisville chancery court sustaining the demurrer to Norton & Calhoun's answer and crosB-petition, and dismissing them with costs, was a trial within the meaning of the act of 1875, and therefore the petition for removal was filed in this case after the first trial, and is too late. A trial is defined in the Kentucky Code to be "a judicial examination of the issues of law or of facts in an action or proceeding." Section 311. �This definition, however is not conclusive upon this court in ascer- taining the meaning of the word "trial" as used by congress in the act of 1875. The learned chancellor bas, notwithstanding this defi- nition, decided in this case that the judgment of the court upon the demurrer was not a trial within the meaning of the act of 1875, and although that opinion is strong, persuasive evidence of the mean- ing of "trial, " it is not authoritative. This court is obliged to decide for itself, on this motion, the meaning of "trial" as used in the act of 1875. �The act of July 27, 1866, used the words "trial or final hearing," and the act of March 2, 1867, used the words "final hearing or trial," and only required that the petition for removal and bond shall be filed before tha,t time. The act of 1875 has dropped the words "final" and "hearing." "Trial," in this act, (1875,) must include a "hearing," as used in the equity practice. The trial, as expressed in this act, may or may not be in fact a "final trial, " but to be a trial it must be such a proceeding as may give the court where it is the right to ��� �