That none of the other defendants in said cause have made any appearance or set up any claims of interest in the cause or controversy, and that the defendants named herein are the only ones appearing to have any interest therein. Your petitioners further represent that no final hearing or trial of said cause has been had, but said cause is now pending for trial in this court."

brought.

time the suit was begun nowhere appears, but | State of Wisconsin; defendant J. W. Hartley an amended petition was filed on the 22d of is a citizen of the State of Ohio; and that deNovember, 1879, making Joseph W. Hartley, fendants E. Mary Gregory, James E. Phillpot, Reuben R. Tingley, and many others, parties. J. S. Gregory and Luke Lavender are citizens To this petition Hartley filed an answer and of the State of Nebraska; and that said Thos. cross petition on the second of December, 1879, J. Cantlon and Reville E. Parshall were nonTingley an answer on the first of December, residents of the State of Nebraska at the com1879, and Parshall an answer and cross petition mencement of this action. at some time before May 17, 1880. The answer and cross petition of Hartley are found in the record, and from them it appears that he claimed and sought to enforce a lien on the property as security for the payment of money he advanced Kellogg to aid in paying the note due to Lavender in May, 1873. The answer of Tingley and the answer and cross petition of Parshall are not copied into the transcript. On the 17th of May, 1880, the two Gregorys, Lav- Upon the presentation of this petition, the Disender, Cantlon and Phillpot filed demurrers to trict Court refused to surrender its jurisdiction, the answers and cross petitions of Hartley and and the petitioners excepted. On the 11th of Parshall, and to the answer of Tingley, on the November, 1882, a decree was entered sustainground that they did not state facts sufficient to ing the several claims of Hartley and Tingley, constitute a cause of action or a defense. These and establishing liens in their favor on the propdemurrers were heard and overruled by the erty in dispute. From this decree the Gregorys, court on the 17th of August, 1880, and thirty Phillpot, Cantlon and Lavender appealed to the days given the demurring defendants to answer. Supreme Court of the State, and assigned for At the time of the filing of the amended pe- error the refusal of the District Court to surtition, the legal title to the property was in E. render its jurisdiction on the presentation of the Mary Gregory, the wife of J. S. Gregory, Lav-petition for removal. The Supreme Court susender having conveyed it to Phillpot and Cant-tained the action of the District Court, and to lon after he made his contract with Kellogg, review that decision this writ of error was and they having afterwards sold and conveyed it to Mrs. Gregory. On the 28th of November, 1879, Mrs. Gregory settled all matters in dispute with Kellogg, and he assigned to her his contract with Lavender. After this settlement, on the 22d of September, 1880, Mrs. Geegory filed her answer to the amended petition, in which she set up her title to the property and her adjustment of the controversy with Kellogg. On the 27th of September, 1880, Lavender, Phillpot and Cantlon filed their answer to the cross petition of Hartley. On the 5th of November, 1880, leave was given Parshall and Tingley to file amended answers in forty days, and, on the 13th of December, 1880, Parshall did file his answer and cross petition, claiming to be the owner of Kellogg's note to Lavender falling due in 1874, and asking to enforce a lien on the property for its payment. At the same time Tingley filed his answer and cross petition, in which he claimed an interest in the note due in 1874, and prayed affirmative relief in his own behalf. On the 3d of March, 1881, Lavender, Phillpot, Cantlon and Mrs. Gregory, with leave of the court, filed a reply to the answer and cross petition of Parshall. On the 23d of March, 1882, leave was granted Tingley to amend his pleadings, and to Mrs. Gregory to file an amended answer in thirty days. Mrs. Gregory did file her amended answer to the cross petition of Hartley on the 17th of April, 1882; and, on the 15th of June thereafter, the Gregorys, Lavender, Cantlon, Phillpot and Kellogg presented their petition for the removal of the cause to the Circuit Court of the United States. That petition, so far as it is material to the question now under consideration, is as follows:

"Your petitioners now show to this court that the plaintiff herein, Milo F. Kellogg, is a citizen of the State of Missouri; defendant Thos. J. Cantlon is a citizen of the State of Colorado; defendant Reville F. Parshall is a citizen of the

To our minds it is very clear that there was no error in the rulings of the courts below upon the federal question involved, which alone can be considered by us. The District Court was not bound to surrender its jurisdiction until a case was made which, on the face of the record, showed that the petitioners were, in law, entitled to a removal. The mere filing of a petition is not enough, unless, when taken in connection with the rest of the record, it shows on its face that the petitioner has, under the statute, the right to take the suit to another tribunal. R. R. Co. v. Koontz, 104 U. S., 14 [XXVI., 645].

The Act of 1875, ch. 137, 18 Stat. at L., 470, which governs this case, provides that the petition for removal must be filed at or before the term at which the cause could be first tried, and before the trial. 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. Babbitt v. Clark, 103 U. S., 606 [XXVI., 507]; Palace Car Co. v. Speck [ante, 925]. It has also been decided, that there cannot be a removal after a hearing on a demurrer to a complaint because it does not state facts sufficient to constitute a cause of action. Alley v. Nott [ante, 491]; Scharff v. Levy [ante, 825]. Either one of these rules is fatal to the present case. If we treat the suit as originally one to enforce the liens of Hartley and Tingley upon the property as security for the payment of the amounts due them respectively, it was begun when their respective answers and cross petitions claiming affirmative relief were filed, and this was certainly not later than December 13, 1880, or a year and a half before the petition for removal was presented. Five terms of the court had passed, at either one of which the case would have been triable, if the parties had taken the

usual steps as to pleadings and preparations. In fact, more than a year had elapsed from the time the issues had actually been made up on the pleadings of some of the parties.

Then again, the answers and cross petitions of the claimants of these several liens are to be treated as their petitions for relief upon their respective causes of action. The answer and cross petition of Hartley, the original answer of Tingley, and the original answer and cross petition of Parshall, were all demurred to on the 17th of May, 1880, and the demurrers overruled, nearly two years before the petition for removal was filed. After the hearing on the demurrers it was too late, under our decisions, to ask for a removal.

Without considering any of the other objections to the removal which might be urged, the judgment is affirmed.

National Bank their pro rata share of certain property of the debtor company which was in the hands of the Bank. The Bank claimed a superior right to the property, and denied its liability to account to creditors therefor. The only questions in the case, as made by the bill, were: (1) whether the Bank held the property, or the proceeds thereof, in trust for the creditors of the company; and, if so (2), what was the pro rata share of the complainants. No decree was asked for any more than this share. The Bank, in its answer, did not seek affirmative relief.

Upon the hearing, the court found that the Bank did hold certain property in trust for the creditors, and sent the case to a master to ascertain the share of the complainants therein. In the interlocutory decree to this effect, leave was given other creditors to intervene pro interesSE suo for the recovery of their respective pro rata James H. McKenney, Clerk, Sup. Court, U. S. shares of the trust property. Upon the coming in of the master's report, a final decree was entered:

True copy. Test:

FOURTH NATIONAL BANK OF ST.

LOUIS, Appt.,

v.

"That the said complainants and the several intervenors severally have and recover of defendant, the Fourth National Bank of St. Louis, the several sums hereinafter stated, being the several pro rata shares, as ascertained by the

A. L. STOUT ET AL., as STOUT, MILLS & said report of the special master pro hac vice,

TEMPLE ET AL.

The history and facts of the case appear in the opinion of the court.

On motion to dismiss.
Messrs. Frederick N. Judson, John H.
Overall and Mills & Flitcraft, for appellees,
in support of motion:

in the assets of the Yeager Milling Company,
heretofore found by the interlocutory decree
herein of October 30, 1882, to have been
wrongfully appropriated by said Fourth Na-
tional Bank, as follows:

Stout, Mills & Temple.....
Kidder, Peabody & Co...
R. Hunter, Craig & Co.....
Anton Kufike.

Merchants' Bank of Canada.......
The First National Bank of Chicago.

$3,591 32

2,658 72

1,072 26

749 66

391 23

527 41 $8,990 60

And to have each his several execution therefor, with his costs."

The bill was also dismissed as to all the defendants except the Bank, and as to the Bank except to the extent of the decree in favor of the several creditors as above, such dismissal being without prejudice to any claims or rights and claims of any defendant as against each other, connected with the matters set forth in the master's report."

The case of Schwed v. Smith, 106 U. S., 188" (XXVII., 156), is decisive of the case at bar.

See, also, Russell v. Stansell, 105 U. S., 303 (XXVI., 989); Elgin v. Marshall, 106 U. S., 582 (XXVII., 250); Loan & T. Co. v. Waterman, 106 U. S., 270 (XXVII., 117); Adams v. Crit tenden, 106 U. S., 576 (XXVII., 99); Tupper v. Wise (ante, 189).

The jurisdiction rests upon the amount of each judgment alone.

Merrill v. Petty, 16 Wall.,338 (83 U. S., XXI., 499); Hilton v. Dickinson, 108 U. S., 165 (XXVII., 688); Schwed v. Smith (supra).

Mr. B. D. Lee, for appellant, contra.
Mr. Chief Justice Waite delivered the

ion of the court:

From this decree the Bank appealed, and the appellees, the several creditors in whose favor the decree was rendered, now move to dismiss, because the value of the matter in dispute between the Bank and the several appellees does not exceed $5,000.

The motion is granted on the authority of Seaver v. Bigelow, 5 Wall., 208 [72 U. S., XVIII., 595], and Schwed v. Smith, 106 U. S., 188 [XXVII.,156]. The appellees have separate and distinct decrees in their favor, depending on sepaopin-creditors had intervened, and the decree had rate and distinct claims. If none of the other been rendered in favor of Stout, Mills & Temple alone, upon their bill as filed, in which they sought to recover only their pro rata share of the assets of their debtor in the hands of the Bank, it certainly could not be claimed that an ors' bill. See note to Myers v. Finn, 72 U.S. (5 Wall.), appeal would lie, if their recovery was for less than $5,000. The suit was instituted, not for

This was a suit in equity begun by Stout, Mills & Co., judgment creditors of the Yeager Milling Company, to recover from the Fourth

NOTE-Judgment creditors may unite in a creditXVIII., 604.

END OF VOL. 113.