# Fisk v. Henarie/Opinion of the Court

* Court Documents
* Case Syllabus
* Opinion of the Court
* Dissenting Opinion Harlan
United States Supreme Court
142 U.S. 459
Fisk v. Henarie
After this case had been pending in the state courts from November 13, 1883, to August 1, 1887, had been tried three times before a jury in the circuit court, there being one verdict for defendants, one for plaintiff, and one disagreement, and been heard in various phases three times in the supreme court of the state, the application was made for removal. Was this application in time? This question is to be determined upon a proper construction of section 2 of the act of congress of March 3, 1887, for it is not, and could not be, contended that the right of removal could then have been invoked on the ground of diverse citizenship. The application was filed July 30, 1887, and by its terms purported to be made under the act of 1887, to which act the order of the state court referred. Indeed, if subdivision 3 of section 639 of the Revised Statutes were repealed by the act of 1887, or, since some of the defendants were then and at the commencement of the suit citizens of the same state as the plaintiff, if a removal could be had at all, it could only be under the act of 1887. The judiciary act of 1789 provided that a party entitled to remove a cause should file his petition for such removal 'at the time of entering his appearance in such state court.' 1 St. 79. The act of July 27, 1866, relating to separable controversies, provided that 'the defendant, who is a citizen of a state other than that in which the suit is brought, may, at any time before the trial or final hearing of the cause, file a petition for the removal of the cause,' etc. 14 St. 306. The act of March 2, 1867, relating to removal on the ground of prejudice or local influence, provided that the plaintiff or defendant 'may, at any time before the final hearing or trial of the suit, file a petition in such state court for the removal of the suit,' ect. Id. 558. The first subdivision of section 639 of the Revised Statutes was a re-enactment of the twelfth section of the judiciary act; the second subdivision, of the act of July 27, 1866; and the third subdivision of the act of March 2, 1867; and this subdivision adopted the phraseology of the act of July 27, 1866, namely, 'At any time before the trial or final hearing' of the suit.
The act of March 3, 1875, said nothing about prejudice or local influence, but provided, in the case of diverse citizenship, that the party desiring to remove a cause should make and file his petition in the state court 'before or at the term at which said cause could be first tried, and before the trial thereof.' 18 St. 470, 471. This act repealed the first and second subdivisions of section 639 of the Revised Statutes, but left subdivision 3 unrepealed. Railroad Co. v. Bates, 119 U.S. 464, 467, 7 Sup. Ct. Rep. 285. In Insurance Co. v. Dunn, 19 Wall. 214, it was held that the word 'final,' as used in the phrase, 'at any time before the final hearing or trial of the suit,' applied to the word 'trial' as well as to the word 'hearing.' And it has been often ruled that if the trial court had set aside a verdict and granted a new trial, or if the appellate court had reversed the judgment and remanded the case for trial de novo, it was not too late to apply to remove the cause under the act of 1867 and subdivision 3. Vannevar v. Bryant, 21 Wall. 41; Jifkins v. Sweetser, 102 U.S. 177; Railroad Co. v. Bates, 119 U.S. 464, 467, 7 Sup. Ct. Rep. 285, and cases cited. But these and like decisions were inapplicable to proceedings under the act of 1875, as the petition was thereby required to be filed 'before or at the term at which said cause could be first tried and before the trial thereof.' This has been construed to mean the first term at which the cause is in law triable,-the first term in which the cause would stand for trial if the parties had taken the usual steps as to pleadings and other preparations; and it has also been decided that there cannot be a removal after the hearing on a demurrer to a complaint because it does not state facts sufficient to constitute a cause of action. Gregory v. Hartley, 113 U.S. 742, 746, 5 Sup. Ct. Rep. 743; Alley v. Nott, 111 U.S. 472, 4 Sup. Ct. Rep. 495; Laidly v. Huntington, 121 U.S. 179, 7 Sup. Ct. Rep. 855. The act of March 3, 1887, and also as corrected by the act of August 13, 1888, (25 St. 435,) provided that 'any defendant, being such citizen of another state, may remove such suit into the circuit court of the United States for the proper district, at any time before the trial thereof, when it shall be made to appear to said circuit court that from prejudice or local influence he will not be able to obtain justice in such state court, or in any other state court to which the said defendant may, under the laws of the state, have the right, on account of such prejudice or local influence, to remove said cause.'
In view of the repeated decisions of this court in exposition of the acts of 1866, 1867, and 1875, it is not to be doubted that congress, recognizing the interpretation placed on the word 'final,' in the connection in which it was used in the prior acts, and the settled construction of the act of 1875, deliberately changed the language, 'at any time before the final hearing or trial of the suit,' or 'at any time before the trial or final hearing of the cause,' to read, 'at any time before the trial thereof,' as in the act of 1875, which required the petition to be filed before or at the term at which the cause could first be tried, and before the trial thereof. The attempt was manifestly to restrain the volume of litigation pouring into the federal courts, and to return to the standard of the judiciary act, and to effect this in part by resorting to the language used in the act of 1875, as its meaning had been determined by judicial interpretation. This is the more obvious in view of the fact that the act of March 3, 1887, was evidently intended to restrict the jurisdiction of the circuit courts, as we have heretofore held. Smith v. Lyon, 133 U.S. 315, 10 Sup. Ct. Rep. 303; Ex parte Pennsylvania Co., 137 U.S. 451, 11 Sup. Ct. Rep. 141.
We deem it proper to add that we are of opinion that the act of 1867, or subdivision 3 of section 639, was repealed by the act of 1887. The subject-matter of the former acts is substantially covered by the latter, and the differences are such as to render the intention of congress in this regard entirely clear. Under the previous acts, the right of removal might be exercised by plaintiff as well as defendant; the application was addressed to the state court; there was no provision for the separation of the suit; the ground of removal was based upon what the affiant asserted he had reason to believe and believed; and action on the motion to remand could be reviewed on appeal or writ of error or by mandamus; while under the latter act the right is confined to the defendant; the application is made to the circuit court; the suit may be divided and remanded in part; the prejudice or local influence must be made to appear to the circuit court,-that is, the circuit court must be legally satisfied, by proof suitable to the nature of the case, of the truth of the allegation that, by rason of those causes, the defendant will not be able to obtain justice in the state courts; and review on writ of error or appeal or by mandamus is taken away. Ex parte Pennsylvania Co., 137 U.S. 451, 11 Sup. Ct. Rep. 141; Malone v. Railroad Co., 35 Fed. Rep. 625. The repealing clause in the act of 1887 does not specifically refer to these prior acts, but declares that 'all laws and parts of laws in conflict with the provisions of this act be, and the same are hereby, repealed.' The provisions relating to the subject-matter under consideration are, however, so comprehensive, as well as so variant from those of the former acts, that we think the intention to substitute the one for the other is necessarily to be inferred, and must prevail. In King v. Cornell, 106 U.S. 395, 396, 1 Sup. Ct. Rep. 312, it was held that subdivision 2 of section 639 was repealed by the act of 1875, the repealing clause in which was the same as here, and Mr. Chief Justice WAITE, delivering the opinion of the court, said: 'While repeals by implication are not favored, it is well settled that where two acts are not in all respects repugnant, if the later act covers the whole subject of the earlier, and embraces new provisions which plainly show that it was intended as a substitute for the first, it will operate as a repeal.' The rule thus expressed is applicable, and is decisive. Many other questions of interest and importance arise upon this record, and have been argued by counsel, but the conclusion at which we have arrived renders their determination unnecessary. We are of opinion that the application for removal came too late. The judgment must therefore be reversed, and the cause remanded to the circuit court, with a direction to remand it to the state court.
So ordered.
Mr. Justice HARLAN dissenting.

## Notes

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