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making school-orders draw six per cent. interest in certain cases." The act contains six sections; the fourth providing that “all school-orders shall draw six per cent. interest after having been presented to the treasurer of the district and not paid for want of funds, which fact shall be indorsed upon the order by the treasurer.” As there are two kinds of school-districts in Iowa, -"district township” and “independent district,” the latter carved out of the former,—it is contended that the title to the act in question embraces two subjects: one relating to matters in which independent school-districts alone are concerned, and the other to matters in which the township district and independent districts are concerned. That whether school-orders, which may be issued for many purposes by districts of either kind, should bear interest or not is wholly foreign to the borrowing of money to build school-houses in independent districts. Iowa Code 1873, c. 9, tit. 12.

We are not referred to any adjudication by the supreme court of Iowa which sustains the point here made. On the contrary, the principles announced in State v. County Judge, 2 Iowa, 281, show that the act before us is not liablo to the objection that its title embraces more than one subject. The object of the constitutional provision, that court said, was “to prevent the union in the same act of incongruous matter, and of objects having no connection, no relation,” and “to prevent surprise in legislation, by having matter of one natare embraced in a bill whose title expressed another;" but that "it cannot be held with reason that each thought or step towards the accomplishment of an end or object should be embodied in a separate act;" that “the unity of object is to be looked for in the ultimate end, and not in the details or steps eading to the end;" and that “so long as they are of the same nature, and come legitimately under one general denomination or object,” the act is constitutional. The doctrines of that case have been approved by the same court 'n subsequent decisions, and they are decisive against the point here raised. Morford v. Unger, 8 Iowa, 83; Davis v. Woolnough, 9 Iowa, 104; McAunich 1. Mississippi & M. R. CO. 20 Iowa, 342; Farmers' Ins. Co. v. Highsmith, 44 Iowa, 334. The general subject to which this special act relates is the system of common schools. That system is maintained through the instrumentality of district schools of different kinds. Provisions in respect of those instrumentalities—those referring to the erection and completion of school. houses in independent school-districts with money raised upon negotiable bonds, and others, to the rate of interest which all school orders shall bearrelate to the same general object, and are only steps towards its accomplish. ment. See, also, Montclair v. Ramsdell, 107 U. S. 153, S. C. 2 SUP. CT. REP. 391, where this subject was considered.

Other questions have been discussed by counsel; but, as they are not deemed important in the determination of the case, they will not be specially noticed. Judgment affirmed. (113 U. S. 84) PULLMAN PALACE CAR Co. and others 0. SPECK and others.

(January 5, 1885.) REMOVAL OF CAUSES—AT WHAT TIME ELECTION MUST BE MADE.

The election to remove a cause from a state to a federal court must be made at that term in which, according to the rules of procedure of the court, whether they be statutory or rules of the court's adoption, the cause would stand for trial, if the parties bad taken the usual steps as to pleading and other preparations. Appeal from the Circuit Court of the United States for the Northern Dis. trict of Illinois.

Huntington W. Jackson and Edward S. Isham, for appellants. A. M. Pence, for appellees.

* MILLER, J. This is an appeal from an order of the circuit court for the Northern district of Illinois, remanding to the state court a case which had

been removed from that into the circuit court. The removal was prayed for in the petition, on the ground that the controversy was between aliens and citizens of the state of Illinois, and one of the points argued before us is that other parties to the suit, with interest opposed to that of the appellants, at whose instance the removal was made, are citizens also of Illinois, and for that reason the suit was not removable. But we do not pass on this point, because we are of opinion that the application for removal came too late. The act of March 3, 1875, under which this removal was asked, requires of the party seeking it that “he or they make and file a petition in such suit, in such state court, before or at the term at which such cause could be first tried, and before the trial thereof for the removal of such suit into the circuit court."

Under the act of 1789, § 12, (1 St. 79,) the right of removal could only be exercised by a defendant in a court of a state of which he was not a citizen, and he was required to make his application for the removal at the time of entering his appearance. The reasons for this were obviously that the plaintiff, who had selected the state court as his forum, should not be permitted to change it after calling his adversary there, and that the defendant, who had a right of removal, and failed to exercise it at the earliest period possible, should be presumed to have acquiesced in the forum chosen by the plaintiff. The law remained in this condition until an act of congress of July 27, 1866, authorized an alien or citizen of a state other than that in which the suit is brought, to remove the cause, though there be other defendants who are citizens of that state, when there can be a final determination of the controversy, so far as he is concerned, without the presence of the other defendants. In this class of cases the petition for removal could be filed at any time before the trial or final hearing of the cause. 14 St. 306. An act to amend this act, approved March 2, 1867, authorized either plaintiff or defendant in a state court, when they were citizens of different states, to remove the suit on account of prejudice or local influence into the circuit court of the United States, if he filed in the state court an affidavit of the existence of this cause of removal, at any time before the final hearing or trial of the suit. These latter acts do not speak of terms of the courts, or of the appearance of the moving party; but, using the words "hearing" and “trial” in their appropriate sense of a hearing in chancery and a trial at law, permit the removal at any time before the hearing or the trial is begun. Removal Cases, 100 U. S. 457.

The act of 1875, which governs the case before us, while superseding by its general provisions nearly all the removal statutes, prescribes a rule which is neither so stringent as the act of 1789, nor so lax as those of 1866 and 1867. While the party who has a case for removal is not put to his election to exercise or abandon the right to remove at the moment of entering his appearance, he is not permitted unreasonably to delay this election during all the period incident to the preparation of the case, uutil both parties find themselves in condition to go to trial at law, or are ready for a hearing in chancery. The later act clearly requires more diligence in making the election than this. If it had intended to enact that the removing party had until the case was ready for trial on both sides, or was fully at issue, or was noticed or set down for trial, it would have been easy to indicate this in words. The language, however, which was adopted means a very different thing. It is not the time when the case stands ready for trial on the calendar, but the term at which it could be first tried. Not the term at which the party can no longer delay a trial, but the term at which it could be first tried. These words have no meaning if they do not mean the first term after the commencement of the suit at which a trial was in order was a thing which the urging or pursuing party had a right to look for, and to put his adversary to a showing if he desired a continuance. In the language of this court, "the

election must be made at the first term at which the cause is in law triable." Babbitt v. Clark, 103 U. S. 606. In other words, at that term in which, according to the rules of procedure of the court,* whether they be statutory or rules of the court's adoption, the cause would stand for trial if the parties had taken the usual steps as to pleading and other preparations. This term at which the case could be first tried is to be ascertained by these rules, and not by the manner in which the parties have complied with them, or have been excused for non-compliance by the court, or by stipulation among themselves.

On this point the language of MCCRARY, C. J., in Murray v. Holden, 1 McCrary, 341, S. C. 2 Fed. Rep. 740, is very pertinent. “One of the objects,” he says, “of the act of 1875 was to prevent the abuses which had been practiced under the acts of 1866 and 1867, which allowed a removal at any time before the final hearing. It was evidently the purpose of congress to fix an earlier and definite time, which would not permit the litigant to experiment in the state court until satisfied he would fail there, and then change his forum. In all the states there is, by law or rule, a trial term; i. e., a term at which a cause may for the first time be called for a trial. In practice but few contested cases are tried at the first trial term, and it often happens that controversies arise upon questions of pleading, so that no issues of fact are joined at that term. It is, nevertheless, the term at which, within the meaning of the law, such cases could be first tried, and therefore is the term at or before which the petition for removal must be filed.” The case of Babbitt v. Clark, supra, in this court, is also in point. The court there says: “The act of congress does not provide for the removal of a cause at the first term at which a trial can be had on the issues as finally settled by leave of court or otherwise, but at the first term at which the cause, as a cause, could be tried." Under this construction of the statute which is, undoubtedly, sound, there is no difficulty in deciding this case. While it is a chancery cause, the same principles must govern it, though it may require a little more care in determining when it could be first tried.

It appears by a stipulation in the case that the first Monday in every month is the beginning of a new term of the superior court of Cook county, from which this suit was removed. It also appears that the suit was brought to the September rm, 1883, of that urt, and the defendants, who were the removing party, and are also appellants here, obtained an extension of time, by order of the court, for 30 days from September 20th, to answer the original bill, and like time was granted to the defendants in a cross-bill to answer that. This time was extended afterwards in both cases, by agreement of counsel, until January 11, 1884, and on that day they were filed. The application for this removal was made in the February term, 1884. It thus appears that, including the appearance term at which the case might have been tried if appellant had answered according to rule, instead of obtaining an extension of 30 days by order of the court, there were five terms of the court at which the motion could have been made for removal in which no such motion was made. We see no reason why this case was not triable at any of those terms according to the due course of proceedings in such cases. The only reason why it was not so tried, was the time beyond that of the usual course prescribed by rule, which was obtained by order of the court or by agreement of the parties. The case was certainly triable at the January term, after the answers were all in, for it could have been then tried on bill and answer, or the plaintiff have been forced to file replication, which could have been done instanter. The decree of the circuit court remanding the case to the state cuurt is aftirmed.

"113 U, S. 73)

HESS O. REYNOLDS, Adm'r, etc.

(January 5, 1885.) 1. REMOVAL OF CAUSE-ACTION AGAINST ADMINISTRATOR-CITIZENSIUP.

A proceeding in a state court against an administrator, to obtain payment of a debt due by the decedent in his life-time, is removable into a court of the United States when the creditor and the administrator are citizens of different states, notwithstanding the state statute may enact that such claims can only be established in

a probate court of the state, or by appeal from that court to some other state court. 2. SAME–Rev. St. 639, CL. 3—ACT OF MARCH 3, 1875.

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 contlict with this latter statute. The third clause of section 639 of the Revised Statutes is not, therefore,

abrogated or repealed. -3. SAME-APPLICATION, WHEN IN TIME.

An application for removal under that clause is in time if made before the trial

or final hearing of the cause in the state court. 4. Same-FINAL HEARING.

The report of commissioners to whom a claim has been referred by a probate court under the statutes of Michigan is not such final hearing within the nieaning

of that section. 5. SAME-INTO WHAT COURT REMOVABLE.

The removal in all cases is into the circuit court of the district, which embraces, territorially, the state court in which the suit is pending at the time of the removal, with: out regard to the place where it originated.

GRAY, J., dissents. In Error to the Circuit Court of the United States for the Eastern District of Michigan.

Henry Newbegin, for plaintiff in error. E. M. Marble, for defendant in error.

MILLER, J. This is a writ of error to the judgment of the circuit court for the Eastern district of Michigan, remanding a cause to the state court, from which it had been removed into the circuit court. The record shows that plaintiff in error, who was a citizen of Missouri, prosecuted his claim in the probate court of Ionia county, Michigan, against the estate of Warren Sherwood, deceased, of which William Reynolds had been appointed administrator. The claim being resisted, was, in due course of proceeding, referred to commissioners appointed by the probate judge, who reported against its allowance. Thereupon Hess, as the Michigan statute authorized, appealed to the circuit court of Ionia county, where he was entitled to a trial by jury. The judge of that court having been counsel for the administrator in the case, it was by proper order removed to the circuit court of Jackson county after a delay of several years, and from that court into the circuit court of the United States, on the affidavit of Hess that he had reason to believe, and did believe, that, from prejudice and local intluence, he would not be able to obtain justice in said state court.

* The first objection to the removal is that the proceeding in the state court, which was commenced in the probate court to obtain payment of a claim against the estate of a decedent, then under administration in that court, was within the exclusive jurisdiction of the state court, and could not be transferred to a court of the United States. This proposition has been often asserted here and as often denied. It is not denied that the laws of the states are valid which provide for the descent and distribution of property of a decedent, for the proof and registration of wills, for the collection of debts due to the decedent, and the payment of the debts which he owed at the time of his death. Nor is it denied that such courts as are usually called probate courts are Tightfully vested in a general way with authority to supervise the collection of these debts and other assets, the payment of the debts of the decedent, and

* 76

to make distribution of the remainder. But the estate of a decedent is neither a person nor a corporation. It can neither sue nor be sued. It consists of property, or rights to property, the title of which passes on his death, with right of possession, according to the varying laws of the states, to executors of a will, administrators of estates, heirs or devisees, as the case may be.

These parties represent in their respective characters the rights which have devolved on thein in any controversy, legal or equitable, which may become a matter of judicial contest with other parties having conflicting interests. In regard to controversies with debtors and creditors, the executor, if there be a will, or the administrator, if one has been appointed, represents the rights and the obligations which had been those of the deceased. The right of the administrator or executor to sue in the ordinary courts of the country to enforce the payment of debts owing the decedent in his life-time, and unpaid at his death, has always been recognized; and it is believed that no system of administering the estates of decedents has changed this principle. The courts of the United States have always been open to such actions when the requisite citizenship exists, and for this purpose the citizenship of the administrator or executor controls, and not that of the decedent. So, also, until recent times, the administrator or executor was liable to be sued in the ordinary courts, whether state or national, on obligations contracted by the decedent, and such is probably the law of most of the states of the Union at this day. To such a suit the administrator could, at common law, have pleaded that there were no assets in his hands unadministered, or he could

denied cause of action set up by plaintiff. How far a denial of assets would be a good plea now depends on the statutes of the various states, and the various modes of obtaining equality of distribution among creditors where there is not enough to pay all. Such suits, in the absence of any controlling law, can be brought, and have been brought, in the courts of the United States where the requisites of jurisdiction between the parties exist. This jurisdiction of the courts of the United States, in controversies between citi. zens of different states, cannot be ousted or annulled by statutes of the states assuming to confer it exclusively on their own courts.

It may be convenient that all debts to be paid out of the assets of a deceased man's estate shall be established in the court to which the law of the domicile has confided the general administration of these assets. And the courts of the United States will pay respect to this principle in the execution of the process enforcing their judgments out of these assets, so far as the demands of justice require. But neither the principle of convenience nor the statutes of a state can deprive them of jurisdiction to hear and determine a controversy between citizens of different states when such a controversy is distinctly presented, because the judgment may affect the administration or distribution in another forum of the assets of the decedent's estate. The controverted question of debt or no debt is one which, if the representative of the decedent is a citizen of a state different from that of the other party, the party properly situated has a right, given by the constitution of the United States, to have tried originally or by removal in a court of the United States, which cannot be defeated by state statutes enacted for the more convenient settlement of estates of decedents.

These views have been expressed by this court in many cases where they were proper grounds for the decisions made. The latest of them, in which the others are reviewed with care, is that of Ellis v. Davis, 109 U. S. 485, S. C. 3 Sup. Cr. REP. 327, in which the opinion was delivered by Mr. Justice MATTHEWS. Among the cases there cited with approval is that of Gaines v. Fuentes, 92 U. S. 10. That was a suit brought in the Second district court for the parish of Orleans, which, by the laws of Louisiana, was vested with jurisdiction over estates of deceased persons and probate of wills. It was brought to annul the will of Daniel Clark, and to set aside the decree of the

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