,10 , __; V FEDERAL REPORTER,
_ days’ notice of the time when the petition will be heard, where the cause is
removed to the United States circuit court on the return—day of the summons,
` the appointment of commissioners by the latter court to assess damages is
a proceeding in the cause, and will not be made prior to the next regular term
after the removal. Y ,
At Law. , _ V C I
Condemnation proceedings by the Kansas City & Topeka Railway
Company against the Interstate Lumber Company. Motion of petitioner
to remand cause to state court, or to appoint commissioners to assess
damages. .
Crittenden, McDougal do Stiles, for petitioner. g
_ Kagy J: Bremerman and Jefferson Brumback,.for defendant.
PHILIPS, 1. The petitioner instituted this proceeding in one of· the
circuit courts of Jackson county, Mo., for the condemnation to its use
of certain land belonging to the defendant. The petitioner is a railroad
corporation, claiming _the right of. condemnation under grant of power
therefor under the statutes of this, state. Both parties are non-residents.
Onservice of- summons on defendant, it appearedbefore the state court,
and tiled its petition for the removal of the cause to this court. The re-
moval was accordingly made. . The record from the state court is prop-
.erly returnable to the next session of the United States circuit court,
which would be the third Monday of October next; but the petitioner
‘ appearshere and. presents the record, and, afternotice to the defendant,
moves the court to remand the cause for the reason that this court has
.110 jurisdiction over the subject-matter, with the further suggestion that,
if this court should hold that the removal was well taken, the court then
· eproceed to appoint commissioners, pursuant to the statute, to assess the
tdamages, without waiting therefor until the next session of this court.
  . The motion to remand presents for determination the question of prac-
tice whether or not this court can entertain such motion prior to the term
of court in which the defendant is required to tile the copy of the rec-
ord. By the third section of the removal act of 1875, as well as by that
of 1887, the party removing the cause is required to give bond "for his
or their entering in such circuit court, on the first day of its then next
_ session,‘a`copy of the record in such suit for their appearing and enter-
ing bail, etc.; and, the said copy being entered as aforesaid in said cir-
, cuit court, the cause shall then proceedin the same manner as if it had
been originally commenced in the said circuit court." There can be no
question but that in contemplation of this statute the cause would not
` be forhearing until the next regular term of the United States court oc-
JLcurring,afterK`stfch.ren1oval. V It has been held, `however, that this stat-
_ ; utc does not `prevent the ot-her party from bringing up and filing in the
·‘ UnitedStates court such copy- of the record, and this hemay do at any
'day before the,return-day; but the cause itselfcould not be proceeded
_,in._prior,to the term at which, by the terms of the bond, the removing
party is required to present the record, and enter his appearance. It is
  wellsettled 'thatfrom the time of entering- the motion, and tendering