TRADERS' BANK
OF
CHICAGO
'V.
TALLMADGE.
863
plainant from this business, which he bound to aid and assist, was, to a large extent, the cause of the failure. Under these circumstances, the complainant cannot urge as a cause of action in a.court of equity that Holbrook restored t,o the corporation all he had received, placed it, so far as possible, in statu quo, and did not prevent the application of its property to the extinction of an obligation which had existed before he had any connection with it. The complainant has failed to establish his and the decree must be that the bill be dismissed.
TRADERS' BANK 1.
CHICAGO HMD
TALLMADGE and another. October 25,1881)
(Circuit Court, S. D.
York.
REMOVAL OF CAUSEs:-FIRST TERM.
After the expiration of a term of the state court at which the snit could be legally tried, it is too late to 11le a petition for its removal to this court. 2. SAllIE-JURISDICTION-STATE CoURT.
The circuit court is not precluded by the decision of the state court from determinin{ffor itself whether or not the removal was made in time.
Strong «Oadwalader, for plaintiff. James O. Foley, for defendants. BLATCHFORD,' C. J. This is a Buit at law, commenced in a court of the state and removed into this court by the plaintiff. Each defendant answered separately in the state court. The case was duly noticed for trial by the plaintiff and by each of the defendants for a term of the state court, to be held on the first Monclayof May, 1881, which was May 2d. All the notices of trial were served on or before April 18th. On April 18th the state court, on the application of one of the defendants, made an order that the plaintiff file security for costs within 10 days from· the service of the order, or show cause to the contrary on April 29th, and that in the mean time, or, if security should be filed, then until such security should justify, if excepted to, the plaintiff's proceedings should be stayed. This stay continued till May 14th, when it ended. On the seventh of May each defendant gave notice of a motion for May 16th for a commission to take testimony in Missouri, and for a stay of the trial of the action till the return of the commission. On the first of September the plaintiff filed a petition for the removal of the suit into this court. The order of removal was made by the state court on that day. It states that the petition was filed " before the term at which said cause could be first tried, and before the trial thereof, to-wit, on the first day of September, 1881." The petition bears date August 24th, and was verified August 25th. It states that issue was joined on or about April 15, 1881; " that the said suit is not yet ready for trial; and that the same could not be tried at the last term of the court, nor can it be
.'
364
FEDERAL REPORTER.
at the present term, and no trial has been had." The order of removal was made without any prior notice to the attorney for the defendants. There "'-:ts a trial term of the state court which commenced the first Monday of May. The plaintiff, on the fifteenth of April, placed the cause on the calendar of the conrt for that term. There is nothing to show how long that term continued. The motions for commissions were adjourned from time to time till SeptemLer 5th. A trial term of the state court was held in the month of June, 188!. It does not appear that the case was noticed for trial for that term by either party. That term commenced June 6th and ended prior to September 1st. The defendants move to remand the suit.
'.
It is plain that the suit was not removed in time. There was nothing to interfere with its being tried legally at the June term". The notice of motion for a commission and a stay was not a stay. The plaintiff was bound to remO"\,:e the suit, at least, before the end of the June term, if he was to remove jt at all. Forrest v. Keeler, 17 Blatchf. 522. The plaintiff contends that the question of time cannot be considered in this court, because the state court passed upon it in its order. It is true that the state conrt adjudicated upon it, but it did so ex p(trte, and without a hearing of the defendants. The act of March 3, 1875, (18 St. at Large, 470, § 5,) provides that if, in any sdit removed to this court, it shall appear to its 'satisfaction, at any time after the ,suit is removed, that it "does not really and substantially involve a dispute or controversy properly within t4e jurisdiction" of this court, this court shall proceed no further therein, but shall remand it to the court from which it was removed. This provision has recently been construed by the supreme court in Babbitt v. Clark, 103 U. S. 606, 610. It is there said by the court that a decision by the circuit court that the necessary steps were not taken to remove the case, is a. decision of the question of its jurisdiction; and that the question of whether a removal was made in time, is a question of jurisdiction. In that view, it is for this court to determine its jurisdiction, however that question may previously have been decided by the state court. The motion to remand is granted.
PLIMPTON 'V. WINSLOW.
365
(Oircuit Oourt, S. D. New York. November 12,1881.) 1. ST.tTE COMl'rY-SERVICE OF PROCESS.
A party to a suit which has been brought in a circuit court of the United States is protected from the service of process and papers in another suit between the same parties for the same cause of action, which has been commenced in a circuit court in another' state, while attending there a regular examination of witnesses in the former suit.
In Equity. E. N. Elliot, for plaintiff. Wetmore, Jenner et Thompson, for defendant. BLATCHFORD, C. J. A suit in equity brought by the plaintiff in this suit against the defendant in .this suit, for the infringement of letters patent, is pending in the circuit court for the district of c'husetts. Prior to November 2,1881, it had' been verbally agreed between Mr.Rol>erts, the counsel for the defendant; and Mr. Clark, the counsel for :the plain· tiff, in the suit in Massachusetts, that, the. defendant might have testlimQny on his behalf taken the city of New York for·use that suit .bf3fore Mr. Thompson, as a special examiner, and Mr. Clark verbally agreed to atten,d befor8 Mr. Thompson at any time, on telegraphic notice, for the purpose. Such notice was given that, the plaihtiff, 'together with the defendant and Mi. 'Roberts, attended in New 'York,before Mr. Thompson, on November2d/! Mr. Clark was not: present on that day. Witnesses were examined on' that day <)n behalf of the defendant, before 1fr. Thompson, by Mr. Roberts, as cOUnl!l1l1 for the defendant, with the of the plaintiff, who was '1ll.\ring the examination, and It between the plaintiff and Mr. Roberts that Mr. Clark should have the right to afterwards cross-examine the sald'witnesses and enter objections to all questions in the direct testimony; and the examination was adjourned to November 3d. On that day Mr. Clark appeared and cross-examined the said witnesses, and also, in conjunction WIth Mr. Roberts, signed a stipulatlon In writing, dated November 2d, and entitled In the Massachusetts suit, stipulating anli agreeing that Mr. Thompson might be appointed a special examiner by the court of Masl!lachusetts to take the testimony for the defendant in the suit in New York, under the sixty-seventh rule in equity, as amended. After the adjournment on the second of November, and on that day, the defendant was served personally in the street In New York, after he had left the building where the examiner's office was, and a few steps therefrom, with a subprena to appear and answer in this suit, and with a copy of the bill and other papers in this suit, and notice of a motion to be made for an injunction herein. The bill in the suit was filed November 2d, and is a bill for the infringement of the same letters patent. The defendant now mo,ves to set aside the service of the subprena and the other papers on the ground that the privilege of the defendant was violated.