Opinion
Decided June, 1884.
The third clause of section 639 of the U.S. Rev. Sts., which relates to the removal of causes to the federal courts on account of prejudice or local influence, was not repealed by the act of congress of March 3, 1875, and is still in force.
PETITION by the plaintiffs, who are citizens of Pennsylvania, for the removal of the cause to the circuit court of the United States on the ground of prejudice and local influence. The petition, with a bond, and the affidavit of one of the plaintiffs in due forms, stating the facts necessary to bring the case within the terms of the third clause of s. 639, U.S. Rev. Sts., were filed at the April term, 1884. The cause was entered at the October term, 1883, and has been pending in court since that time without any trial being had. The defendant objected that the petition was too late, and that the third clause of s. 639, U.S. Rev. Sts., was repealed by the act of congress of March 3, 1876.
John Hatch, for the plaintiffs.
Frink Batchelder, for the defendant.
The right to remove a cause in which there is a controversy between a citizen of the state in which the suit is brought and a citizen of another state, from a state court to the circuit court of the United States, on the ground of prejudice or local influence, is given to the non-resident party by the third clause of s. 639, U.S. Rev. Sts., which is a reproduction of the act of congress of March 2, 1867. Under this act the petition for removal, accompanied with an affidavit that the petitioner has reason to believe and does believe that from prejudice or local influence he will not be able to obtain justice in the state court, may be filed at any time before the final hearing or trial of the cause, unless the provision of the statute of 1867 is repealed by the act of congress of March 3, 1875. This question is settled by the decision of the supreme court of the United States in the recent case of Hess v. Reynolds, 113 U.S. 73. It is there held that the act of March 3, 1875, to determine the jurisdiction of the circuit courts and regulate the removal of causes from state courts, does not repeal or supersede all other statutes on those subjects, but only such as are in conflict with it; that the third clause of s. 639 of the Rev. Sts. is not abrogated or repealed, and that an application for removal under that clause may be made at any time before the trial or final hearing of the cause in the state court.
Petition granted.
ALLEN[,] J., did not sit: the others concurred.