This is a petition to remove this cause to the circuit court of the United States for the district of New Hampshire, under the act of congress, passed March 2, 1877 (as claimed by the petitioner). The enactment of the Revised Statutes of the United States, which were approved June 22, 1874, operated to repeal the judiciary act of 1789, and the acts of 1866 and 1867 regulating the removal of actions from a state to a federal court. Under the act of 1866 an action within its provisions might be removed into the circuit court of the United States upon petition filed "at any time before the trial or final hearing of the cause." Under the act of 1867, an action within its provisions might be removed into the circuit court of the United States upon petition filed "at any time before the final hearing or trial of the suit." The difference between these two acts in this respect is marked and distinct.
We have been cited by the plaintiffs in review to the case of Insurance Company v. Dunn, 19 Wall. 214, decided October term, 1873, in the supreme court of the United States, which their counsel claims is an authority directly in point in favor of granting this petition. That would be so, provided there has been no change in the statute in the particular above noticed. It becomes important then to inquire whether congress, in enacting the Revised Statutes, has made any change in this respect.
Section 639 contains the provisions of the judiciary act of 1789, and of the acts of 1866 and 1867, relating to the removal of actions from the state to the federal courts. In examining to ascertain whether the act of 1867 has been changed in the particular above mentioned, we look to the corresponding portion of said section, which is the third clause, from which it appears that congress in revising the laws has made its legislation uniform in this respect. It provides that a petition for removal may be filed "at any time before the trial or final hearing of the suit," adopting the same language that was used in the act of 1866, and to which it still adhered in reenacting that act in the second clause of said section.
It is apparent to my mind that this change was not the result of accident, but was deliberately made to secure uniformity upon the subject, in view of the conflicting decisions between the federal and state courts upon this question. Akerly v. Vilas, 1 Abb. U.S. 284; same case,24 Wis. 165; Johnson v. Monell, Woolworth 390; Insurance Company v. Dunn, 19 Wall. 214; same case, Supreme Court of Ohio; Bryant v. Rich,106 Mass. 192.
In Insurance Co. v. Dunn, 19 Wall., Judge SWAYNE says, p. 226 — "In the act of congress of 1866, the language used in this connection is `at any time before the trial or final hearing.' If the difference in the act of 1867 be material, it is fair to presume that the change was deliberately made to obviate doubts that might possibly have arisen under the former act, and to make the latter more comprehensive." *Page 144 That that court considered that there was a substantial difference in the language of the acts of 1866 and 1867 further appears from the second head note to the case, which reads thus: "The language above quoted — `at any time before the final hearing or trial of the suit' — of the act of March 2, 1867, is not of the same import as the language of the act of July 27, 1866, on the same general subject, — `at any time before the trial or final hearing.' On the contrary, the word `final,' in the first mentioned act, must be taken to apply to the word `trial' as well as to the word `hearing.' Accordingly, although a removal was made after a trial on the merits, a verdict, a motion for a new trial made and refused, and a judgment on the verdict, yet it having been so made in a state where by statute the party could still demand, as of right, a second trial — held, that such first trial was not a `final trial' within the meaning of the act of congress, the party seeking to remove the case having demanded and having got leave to have a second trial under the said statute of the state."
In Bryant v. Rich, supra, GRAY J., in delivering the opinion of the court, said, — "The words `before final hearing' in the act of congress of 1867 would seem to be equivalent in meaning to the same words — `trial or final hearing' — as transposed in the similar act of 1866, ch. 288; and it is at least doubtful whether a party who has once taken the chance of a decision upon the merits by a trial before the jury in an action at law, or a hearing before the court in a suit in equity, in the state court, can, if the case stands open for a new trial or further hearing, remove it into another tribunal. It has been decided by the supreme court of Wisconsin, in a very able judgment, that he could not. Akerly v. Vilas, 24 Wis. 165."
The requirement of the present statute then is, that the petition must be filed before "the trial or final hearing in the suit," and not as formerly "before the final hearing or trial of the suit." That this does not mean "final trial" is, I think, clear from the change that was made in the revision of the laws, and seems to be authorized by the stress which is put upon the difference in the language of the acts of 1866 and 1867 by the supreme court in Insurance Company v. Dunn, supra.
The parties in this case have had a trial by jury. The original plaintiff recovered a verdict; the exceptions of the defendant were overruled by the full bench, and judgment for the plaintiff was entered upon the verdict. This judgment cannot be reversed or otherwise affected by a judgment in review. The petitioner's counsel very truly says in his brief, — "It remains, whatever the result of the review, and the party whose favor it was rendered retains whatever he obtained by it: unless reversed by error it must ever stand as the final determination and conclusion of the suit which preceded it. Badger v. Gilmore, 37 N.H. 459; Andrews v. Foster,42 N.H. 379; Pike v. Pike, 24 N.H. 397. Such a trial answers fully the meaning of the term, as used in sec. 639 of the Revised Statutes. In limiting the time when a petition for removal *Page 145 must be filed to a period prior to such trial, congress must be deemed to have intended that the party who may prevail upon such trial in the state court should not be deprived of the fruits of the trial and of the judgment rendered therein at the pleasure of the discontented party.
It is questionable whether the constitution could have been adopted if it had been understood that it conferred on congress the power to pass an act removing an action from a state to a federal court. In Wetherbee v. Johnson, 14 Mass. 412, it is said that it has been held in the supreme court of Virginia "that it never was the intention of the constitution of the United States to consider the supreme courts of the several states as tribunals inferior to the courts of the United States; or that a privilege was given to a defendant who had submitted to the jurisdiction of a state court, taken his trial there, and finally failed in his defence, to harass his adversary by intercepting the remedy which he may have obtained at great expense, and carrying his cause to a tribunal whose sessions would be at the seat of the national government, perhaps a thousand miles distant from the place of his residence."
The decision is, perhaps, only valuable as showing the understanding of those who lived in the time of the early history of the republic.
There are many very strong reasons why, after the parties have submitted to one trial in a state court, the cause should not be removed to another jurisdiction. If it is not "a dangerous interference with the independence of the state tribunals," it tends "to vex and harass the citizen by a multitude of trials, — the last of which would be remote from his place of residence, where it would be always difficult and sometimes impossible for him to prove the facts upon which is cause depended; besides which it infringes one of the most ancient and cherished principles of the common law, that the trial of facts should be in the vicinage where they happened." Wetherbee v. Johnson, supra, 420.
The result of my conclusions is, that the statutes of the United States do not authorize the removal of this cause to the circuit court of the United States for this district. The petition therefore should be denied.
"Sec. 2. That any suit of a civil nature, at law or in equity, now pending or hereafter brought in any state court where the matter in dispute exceeds, exclusive of costs, the sum or value of five hundred dollars, and arising under the constitution or laws of the United States, or treaties made, or which shall be made under their authority, or in which the United States shall be plaintiff or petitioner, or in which there shall be a controversy between citizens of different states, or a controversy between citizens of the same state claiming lands under grants of different states, or a controversy between citizens of a state and foreign states, citizens or subjects, either party may remove said suit into the circuit court of the United States for the proper district; and when in any suit mentioned in this section there shall be a controversy which is wholly between citizens of different states, and which can be fully determined as between them, then either one or more of the plaintiffs or defendants actually interested in such controversy may remove said suit in the circuit court of the United States for the proper district."
"Sec. 4. That when any suit shall be removed from a state court to a circuit court of the United States, any attachment or sequestration of the goods or estate of the defendant had in such suit in the state court shall hold the goods or estate so attached or sequestered to answer the final judgment or decree in the same manner as by law they would have been held to answer final judgment or decree had it been rendered by the court in which such suit was commenced; and all bonds, undertakings, or security given by either party in such suit prior to its removal shall remain valid and effectual, notwithstanding said removal; and all injunctions orders, and other proceedings had in such suit prior to its removal, shall remain in full force and effect until dissolved or modified by the court to which such suit shall be removed."
"Sec. 6. That the circuit court of the United States shall, in all suits removed under the provisions of this act, proceed therein as if the suit had been originally commenced in said circuit court, and the same proceedings had been taken in such suit in said circuit court as shall have been had therein in said state court prior to its removal."
The record of removal need not be certified by the judge, and the petition for removal need not be verified by affidavit. The act of 1875 for the first time expressly authorized the petition and bond to be filed out of term-time. We think it was to prevent the state court from proceeding further in the case after the proper papers were filed in the suit with the clerk. It is said there must be a power in the state court to determine whether the petition and bond are sufficient, and whether the cause is removable under the statute. It is true that the party seeking the removal of the cause must be entitled to the same, but we think that the statute did not intend to permit the state court to judge in such a case as this whether a proper case was made: that was one of the difficulties under the former statutes. This statute gives the power to the federal court, the right to determine whether the cause is properly removable. DRUMMOND, J., in Osgood v. The Chicago, Danville Vincennes R. R. Co. See Chicago Legal News, April 17, 1875. REPORTER.