Opinion of the Court.

pending in this court, or the appellant and appellee in an appeal, shall in vacation, by their attorneys of record, sign and file with the clerk an agreement in writing directing the case to be dismissed, and specifying the terms on which it is to be dismissed as to costs, and shall pay to the clerk any fees that may be due to him, it shall be the duty of the clerk to enter the case dismissed, and to give to either party requesting it a copy of the agreement filed; but no mandate or other process shall issue without an order of the court."

Pursuant to this rule the stipulation of the parties was presented to the clerk of this court, on the 8th of June, 1887, in vacation, and he entered the case dismissed. No mandate or other process has as yet been ordered by the court.

Albert M. Henry claims to have purchased from Charles B. Colton and Lester A. Roberts, two of the plaintiffs in error, their respective interests in the land which is the subject matter of the controversy in the suit, on the 16th of May, 1887, before the stipulation was signed. He now comes here and by petition asks "that an order be entered in this court setting aside and vacating said order of discontinuance, so that your petitioner may have said cause revived as to himself as the grantee and assignee of said complainants, Colton and Roberts," on the ground that the stipulation was signed after his purchase and without authority from him.

Upon consideration of this petition it is

Ordered that the entry of dismissal made in vacation be amended by adding thereto these words: "without prejudice to the right of Albert M. Henry to proceed as he may be advised in the court below for the protection of his interest."

Opinion of the Court.

BALTIMORE AND OHIO RAILROAD COMPANY v.

BURNS.

ERROR TO THE CIRCUIT COURT OF THE UNITED STATES FOR THE DISTRICT OF MARYLAND.

Submitted December 15, 1887. — Decided January 9, 1888.

In this case the court holds that the petition for the removal of the cause to the Circuit Court of the United States was presented too late.

THE question in this case was whether the petition for removal was presented in time.

Mr. John K. Cowen and Mr. Hugh L. Bond, Jr., for plaintiff in error.

Mr. Albert Constable for defendants in error.

MR. CHIEF JUSTICE WAITE delivered the opinion of the

court.

This is a writ of error for the review of an order of the Circuit Court made March 5, 1886, remanding a suit which had been removed from a state court under the act of March 3, 1875, c. 137, 18 Stat. 470. The material facts are these:

The suit was begun in the Circuit Court of Cecil County, Maryland, and it stood for trial at the December term of that court in the year 1884. During that term the railroad company petitioned the court for the removal of the suit to the Circuit Court of Dorchester County for trial, and this was granted January 22, 1885. The cause was docketed in Dorchester County, February 2, 1885, and on the 22d of April, 1885, the railroad company filed in that county its petition for the removal of the suit to the Circuit Court of the United States for the District of Maryland, on the ground that the plaintiffs, Burns and Nokes, were citizens of New Jersey and Pennsylvania respectively, and the railroad company, the

Opinion of the Court.

defendant, a Maryland corporation, and in law a citizen of that State. A removal was ordered by the Dorchester court April 27, 1885, which was at its April term, 1885, and the cause entered in the Circuit Court of the United States May 16, 1885. A motion to remand was made November 2, 1885, and this motion was granted March 5, 1886, on the ground that the petition for removal was not in time.

According

In our opinion this order was properly made. to the agreed facts the Circuit Court of Cecil County holds four terms in each year, commencing respectively on the 3d Monday of March, the 3d Monday of June, the 3d Monday of September, and the 3d Monday of December. It is conceded that the cause could have been forced to trial at the December term, 1885, if it had remained in Cecil County. The terms in Dorchester County begin on the fourth Monday of the months of January, April, and July, and on the second Monday of November in each year. Although the record from Cecil County was filed in Dorchester County on the second day of February, and the petition for removal filed on the 22d of April, it does not appear that it was brought to the attention of the court or any action taken thereon until the 27th of that month, which was the first day of the April term. Under these circumstances it is clear that the petition for removal was not presented in time. The first term of the state court at which the cause could have been tried was the December term in Cecil County. That term must have ended on or before the third Monday in March. The transfer was made to Dorchester County during the January term of that court. That was another term of the state court from that in which the trial could first be had. Consequently the time for removal had passed when the case got to Dorchester County. The railroad company had its election at the December term in Cecil County to remove the suit to the Circuit Court of the United States or to transfer it to Dorchester County for trial. It chose the latter and thereby lost its right to the removal

The order to remand is affirmed.

Argument for the Motion.

BAKER v. POWER.

APPEAL FROM THE CIRCUIT COURT OF THE UNITED STATES FOR THE DISTRICT OF MINNESOTA.

Submitted January 9, 1888. — Decided January 16, 1888.

An appeal can be taken from a decree of a Circuit Court of the United States, entered under the supervision and by the direction of the district judge of the district sitting in the Circuit Court, although he may under the provisions of Rev. Stat. § 614, have had no right to a vote in the

cause.

MOTION TO DISMISS, "because the judgment in the Circuit Court from which this appeal was taken was rendered without consent of appellees by the judge of the United States District Court of said district, sitting in the Circuit Court upon an appeal from his decision as district judge." The following statement accompanied the motion.

66

Appellants filed a libel in admiralty against appellees in the United States District Court for the District of Minnesota to recover damages alleged to have been sustained by collision, &c. The District Court dismissed the libel, and the libellants appealed to the Circuit Court. The circuit judge reversed the decree of the District Court, and ordered the cause referred to a commissioner to examine proofs and report to the court the amount of damages. On a rehearing before the circuit justice the decree and order of reference was sustained. The commissioner's report was confirmed by the district judge holding Circuit Court, and a judgment rendered by him, without consent of parties, from which judgment this appeal was taken."

Mr. William H. Bliss for the motion.

Can a district judge render judgment in the Circuit Court in a case appealed from his decision? If not, then the judgment from which this appeal was taken is not a final judgment, and the appeal must be dismissed.

Argument for the Motion.

The very fact that the Circuit Court is the appellate tribunal precludes the idea of the participation of the district judge in any way, in a case of appeal.

Section 614, Rev. Stat. is as follows: "A district judge, sitting in a Circuit Court, shall not give a vote in any case of appeal or error from his own decision, but may assign the reasons for such decision: Provided, That such a cause may, by consent of parties, be heard and disposed of by him when holding a Circuit Court sitting alone. When he holds a Circuit Court with either of the other judges, a judgment or decree in such cases shall be rendered in conformity with the opinion of the presiding justice or judge.”

The intent and purpose of the enactment, 1 Stat. 74, c. 20, 4, as it stood until amended in 1867, 14 Stat. 545, c. 185, § 2, was to disqualify a district judge from sitting in circuit and performing any judicial act in an appeal from his decision below.

The amendment of 1867 modified the act by providing, that in case of the absence of the circuit justice, and by consent of parties, the district judge might hear and dispose of the cause. Prior to the amendment he could not, under any circumstances, vote in the cause; he could neither hear nor dispose of the cause; hence, presumably in order to facilitate the transaction of the business of the courts, this proviso was enacted.

If, prior to that date, the district judge could participate in the proceedings, could either hear or dispose of the cause, clearly there would have been no necessity for the amendment.

The law in question seems to have been before this court for construction, for the first and only time, in the case of Rodd v. Heartt, 17 Wall. 354, which was a motion to dismiss for want of jurisdiction based upon the ground, among others, that the appeal was from a decree of the Circuit Court, reversing a decree of the District Court, and was allowed by the district judge. It was held that, "though upon appeals from the District Court the district judge has no vote in the Circuit Court, he has, in all other respects, the powers of a member of the court, and may, consequently, allow appeals from its