Fisk v. Henarie/Dissent Harlan
Mr. Justice HARLAN dissenting.

Mr. Justice FIELD and myself do not concur in the construction which the court places upon the act of 1887.

Section 3 of that act, requiring the petition for removal to be filed in the state court 'at the time, or at any time before, the defendant is required by the laws of the state, or the rule of the state court in which such suit is brought, to answer or plead to the declaration or complaint of the plaintiff,' excepts from its operation the cases mentioned in the last clause of section 2, namely, those in which a removal is asked upon the ground of prejudice or local influence. As to the latter cases, the statute provides that the removal may be had, upon a proper showing, 'at any time before the trial.' This means at any time before a trial in which, by a final judgment, the rights of the parties are determined. Under the act of 1887, there can be no removal, upon the ground of prejudice or local influence, unless it be made to appear to the circuit court of the United States that, on account of such prejudice or local influence, the defendant citizen of another state cannot obtain justice in the state courts. The existence of such prejudice or local influence is often disclosed by a trial in the state court in which the verdict or judgment is set aside. The fact of prejudice or local influence may be established by overwhelming evidence; still, under the decision of the court, there can be no removal, if the application for removal be not made before the first trial. We do not mean to say that, when a trial is in progress, the cause may be removed before its termination, even upon the ground of prejudice or local influence. But if, at the time the application is made, the cause is not on trial, and is undetermined, that is, has not been effectively tried, the act of 1887, in our judgment, authorizes a removal, on proper showing, upon the ground of prejudice or local influence, although there may have been a trial, resulting in a verdict which has been set aside.

The error, we think, in the opinion of the court is in applying to the act of 1887 the decisions under the act of 1875. The words in the latter act limiting the time within which the application for a removal must be made-'before or at the term at which said cause could be first tried, and before the trial thereof'-necessarily meant, as this court has held, the first trial, whether it resulted in a verdict or not, and although the verdict and judgment may have been set aside; because the express requirement was that the application for removal must, in any event, be made before or at the term at which said cause could be first tried. No such requirement is found in the act of 1887 in respect to cases sought to be removed upon the ground of prejudice or local influence; while, in respect to all cases of removal, except those upon the ground of prejudice or local influence, the latter statute provides that the application shall be made at the time, or at any time before, the defendant is required by the laws of the state, or the rule of the state court in which the suit is brought, to answer or plead to the declaration or complaint of the plaintiff, the removal, because of prejudice or local influence, may be applied for 'at any time before the trial thereof.' This difference in the language of the two acts means, we think, something more than the court attributes to it. Congress could hardly have intended to give the defendant citizen of another state simply the time between his answering or pleading, and the calling of his case for the first trial thereof, to determine whether he should apply for a removal upon the ground of prejudice or local influence. In our judgment, it meant to give the right of removal, upon such ground, at any time, when the case is not actually on trial, and when there is in force no judgment fixing the rights of the parties in the suit. If a case is open for trial on the merits, an application for its removal before that trial commences is made 'before the trial thereof.' In our opinion, the interpretation adopted by the court defeats the purpose which congress had in view for the protection of persons sued elsewhere than in the state of which they are citizens. 

Notes