p. 465On the 7th of July, 1877, this judgment was reversed by the District Oourt of the county, and the cause remanded to the common pleas for further proceedings. When the case got back, the railroad company filed a petition for removal to the Circuit. Oourt of the United' States for the Southern District of Ohio, under sub-section 3 of § 639 of the Kevised Statutes, on the ground of prejudice and. local influence. The petition was in proper form, and it was accompanied by the necessary affidavit, but the security was such as was prescribed by § 639 of the Eevised Statutes, and not such as was required by § 3 of the act of March 3, 1875, c. 137, 18 Stat. 470 . The act of 1875 requires security for “all costs that may be awarded by the said Circuit Oourt, if the said court- shall hold that such suit was wrongfully or improperly removed thereto.” This is not found in § 639.
The petition for removal was denied by the Oourt of Common Pleas, December 22, 1877, and thereupon the railroad company answered, and the parties went to a trial May 23, 1878, -when a judgment was rendered against the company. The case was taken then, on petition in error, to the District. Oourt of the county, because, among others, the court erred in denying the petition for removal. On the 28th of February, 1880, the District Court reversed the judgment for this error, and the case was then taken to the Supreme Oourt of the State, where the judgment of the District Court was reversed, and that of the common pleas affirmed, on the 15 th of May,. 1883, that court holding that the security was defective, because it was not such as the act- of 1875 required. To reverse that judgment this writ of error was brought.
Mr. Hugh L. Bond, Jr.^ {Mr. John H. Cowen was with him,) for plaintiff in error.
Mr. Gibson Atherton, {Mr. J. A. Flory was with him,) for defendant in error,
submitted on his brief. It was the intention of Congress, in framing the act of March 3, 1875, to 'consolidate and codify into one section, with one mode of procedure, all the law relating to the class of cases between citizens of dif
p. 467been made in consequence of the construction given to the act of 1867, in 19 "Wall.; for if Congress, having full knowledge of that decision, had intended'to follow the act of 1867, they would have worded'it the same. Thus the law is brought back to. the state it had been in since the foundation of the government, and under which the rights of parties had been long settled by judicial decisions." See
King v. Cornell, 106 U. S. 395 , 397. ■'
after stating the case, delivered the opinion of the court.
Sub-sections 1 and 2 of § 639 were repealed by the' act of 1875; Hyde v. Ruble, 104 U. S. 407 ; King v. Cornell, 106 U. S. 395 , 398; Holland v. Chambers, 110 U. S. 59 ; Ayres v. Watson, 113 U. S. 594 ; but subsection 3 was not. Bible Society v. Grove, 101 U. S. 610 ; Hess v. Reynolds, 113 U. S. 73 , 80. Under sub-section 3, the petition for removal, may be filed at any time before the final trial or hearing. Insurance Co. v. Dunn, 19 Wall. 214 ; Vannever v. Bryant, 21 Wall. 41 ; Yulee v. Vose, 99 U. S. 539 , 545; Railroad Co. v. McKinley, 99 U. S. 147 . This petition was filed after a new trial had' actually been granted, and while the cause was pending in the trial court for, that purpose. It was, therefore, in time, and no objection is made to its form. •
As sub-section 3 has not been repealed, so much of the remainder of § 639 as is necessary to carry,,¡Tie ..provisions.-of that sub-section into effect remains in force, unless- something else has been put in its place. It is not contended that anything of this kind'has been done, unless it be by'thé operation of § 3 of'the act of 1875, but that section by its-very terms.is only applicable to removals under § 2 of the same act.' The language is, “ that whenever either party, or any one or more of the plaintiffs or defendants entitled to remove any suit men- ■ tioned in the next preceding section,” -that is to say, § 2 of the act of 1875, “shall desire to remove such suit,” he shall petition and give security in the manner and fonn therein prescribed. Clearly, then, this section. relates only to remováis provided
p. 468for in that act, ancl as sub-section 3 of § 639 remains in force, because the cases there provided for are not included among those mentioned in the act of 1875, it follows that the form and mode of proceeding to secure a removal under the subsection will be sufficient if they conform to the requirements of the other parts of the section'. That section as it now, stands unrepealed is complete in itself, and furnishes its own machinery to effect a removal of all cases which come within its operation. The security is as much governed by the remainder of the section as the time for filing the petition; and as to that, it was distinctly held in,
Hess v.
Reynolds, supra, that the petition was in time if presented before the final trial, even though it was after the term at which the cause could have been first tried, which would be too late if § 3 of the act of 1875 was applicable to this class of cases. As to this the court said in that case: “We are of opinion that tins clause of § 639 remains, and is complete in itself, furnishing its own peculiar cause of removal, and prescribing, for reasons appropriate to it, the time within which it must be done..”
It is true this suit is between citizens of different States, and as such it is mentioned in § 2 of the act of 1875'; but the fair meaning of § 3 is that the suit must be one that is removable simply for the reason that it is one of a class such as is mentioned in § 2. Some cases in the circuit courts have been ruled the other way, and the decision of the Supreme Court of Ohio was put largely on their authority; but they were all decided before Hess v. Reynolds, supra, in this court, and that case, as we think, substantially covers this.
The judgment of the Supreme Court of Ohio is reversed, a/hd the canse remanded for further proceedings i/n aecorda/nee with this opinion.