while the demurrer is pending; 46 and that a 'cause cannot be removed after it has been set down for trial, without objection by the defendant who had previously answered.*7

The resignation of a trustee, who is a citizen of the same State as the complainant, does not make the cause removable by the remaining defendants.48 Where the plaintiff's original pleading does not present a removable case, but subsequent events made it plain that there then existed a removable controversy between the original parties, a removal may be made as soon as this appears.49 Where a separable controversy first appeared upon the filing of a reply by the plaintiff, a removal was then allowed.50

§ 543a. Extensions of time as affecting right to removal. The preponderance of authority supports the proposition that if the defendant's time to plead or answer has been, before its expiration, extended by an order of the State court, or by a

46 Martin v. Carter, 48 Fed. 596. 47 American Bonding Co. v. Mills, 152 Fed. 107. See Case v. Olney, 106 Fed. 433.

48 Ruohs v. Jarvis-Conklin Mortg. Trust Co., 84 Fed. 513.

49 Powers v. Chesapeake & O. Ry. Co., 169 U. S. 92, 18 Sup. Ct. 264, affirming judgment 65 Fed. 129; Fritzlen v. Boatmen's Bank, 212 U. S. 364.

50 Fritzlen V. Boatmen's Bank, 212 U. S. 364.

§ 543a. 1 That it does, is said in Winberg v. Berkeley Co. Ry. & L. Co. (S. D. N. Y.), 29 Fed. 721; Simonson v. Jordan (S. D. N. Y.), 30 Fed. 721; Wedekind v. So. Pac. Co., 36 Fed. 279, 281; Sowles v. Witters (D. Vt.), 43 Fed. 700; Rycroft v. Green (E. D. Pa.), 49 Fed. 177; People's Bank v. Aetna Ins. Co. (D. S. C.), 53 Fed. 161; Wilcox & Gibbs Guano Co. v. Phoenix Ins. Co. (D. S. C.), 60 Fed. 929; Allmark v. Platte S. S. Co. (S. D.

N. Y.), 76 Fed. 614; Chiatovitch v. Hanchett (D. Nev.), 78 Fed. 193; Tracy v. Morel (D. Nev.), 88 Fed. 801; Mayer v. Ft. Worth & D. C. R. Co. (S. D. N. Y.), 93 Fed.. 601; Lord v. Lehigh Val. R. Co. (S. D. N. Y.), 104 Fed. 929; Dancel v. Goodyear Shoe Mach. Co. (S. D. N. Y.), 106 Fed. 551; Sanderlin V. People's Bank (E. D. N. C.), 140 Fed. 191; Russell v. Harriman Land Co. (E. D. N. Y.), 145 Fed. 745; Avent v. Deep River Lumber Co. (E. D. N. C.), 174 Fed. 298; Higson v. North River Ins. Co. (E. D. N. C.), 184 Fed. 165; State Improvement-Development Co. V. Leininger, 226 Fed. 884; Hinman v. Barrett, 244 Fed. 621; Citizens' Trust & Savings Bank v. Hobbs (S. D. Cal.), 253 Fed. 479. See also McKeen v. Ives (D. Ind.), 35 Fed. 801. Contra, Dixon v. W. U. Tel. Co. (N. D. Cal.), 38 Fed. 377; Austin v. Gagan (N. D. Cak), 5 L.R.A. 476, 39 Fed. 626; Velie v. Manu

stipulation authorized by a State statute or court rule, his time to remove is likewise extended. It has been held that an ex parte order of extension, or an oral stipulation, not authorized by the State practice, will not extend the time of removal.

§ 543b. Removals after defaults. After the time to plead in a case, which the plaintiff's pleading previously showed to be removable, has once expired, the time to remove cannot be extended by an order opening the default and allowing him to plead; although the right to have the default opened is given the defendant by statute 2 or rule. The omission to enter judgment by default does not extend the time.*

The facts that the defendant's attorney was prevented by inevitable accident from filing his petition,5 and that there was an oral understanding that no default should be taken," I will not enlarge the time.

Where the defendant made a default in pleading, after service of a summons without a complaint, and the default was opened; it was held that the case might be removed. A removal may be had after the opening of a judgment, taken by default against a defendant, who had not been properly served. Where there are two defendants, and but one controversy, and the time for removal has expired as to one; it is too late for the other to remove the case, although he has not been previously served; provided that he was named as a party in the plaintiff's orig

§ 543b. 1 Hurd v. Gere, 38 Fed. 537; Rock Island Nat. Bank v. J. S. Keator, L. Co., 52 Fed. 897; Price v. Lehigh Val. R. Co., 65 Fed. 825; Quilhot v. Hamer, 158 Fed. 188; Williams V. Southern Bell Telephone & Telegraph Co., 116 N. C. 558, 21 S. E. 298. See McCallon v. Waterman, Fed. Cas. No. 8,675 (1 Flip. 651); Berrian v. Chetwood, 9 Fed. 678.

2 Davis v. Harris, 124 Fed. 713. Where the order opening the default extended defendant's "time to plead or otherwise move''; it was held that his time to remove his suit was thus extended. Gail v. Atlantic Coast Line R. R. Co., 82 Misc. (N. Y.) 296.

8 Adams v. Puget Sound Traction, Light & Power Co., 207 Fed. 205. 4 Kansas City, Ft. S. & M. R. Co.

v. Daughtry, 138 U. S. 298, 34 L. ed. 963; Heller v. Ilwaco Mill & Lumber Co., 178 Fed. 111; Wayt v. Standard Nitrogen Co., 189 Fed. 231; Adams v. Puget Sound Traction, Light & Power Co., 207 Fed. 205.

5 Daugherty v. W. U. Tel. Co., 61 Fed. 138.

6 Price v. Lehigh Valley R. Co., 65 Fed. 825.

7 Remington v. Central Pac. R. R. Co., 198 U. S. 95; Dancel v. Goodyear Shoe Mach. Co., 106 Fed. 551.

8 Harter Tp. v. Kernochan, 103 U. S. 562, 26 L. ed. 411; City of Detroit v. Detroit City Ry. Co., 54 Fed. 1; Tortat v. Hardin, M. & M. Co., 111 Fed. 426; State v. Barnes, 5 N. D. 360, 65 N. W. 688; Smith v. Life Ass'n of America, 76 Va. 380.

inal pleading. An intervenor cannot remove the case, when his intervention takes place after the expiration of the original defendant's time to remove.10 Where, however, after the expiration of the time of the original defendant, others are brought in by amendment, they may remove the case because of a Federal question that appeared in the plaintiff's original pleading; 11 or, it has been held, because of a difference of citizenship.12

§ 543c. Amendment by plaintiff as affecting time for removal. The service or filing by the plaintiff of an, amended pleading before his original pleading has been answered by the defendant extends the latter's time to remove.1 Where the plaintiff's original pleading does not present a removable case, but an amendment thereto, by omitting some of the original parties,2 or by showing that one of the defendants, who was originally charged jointly with the other, is a nominal party,3 or by correcting a previous misstatement of the citizenship of one of the parties, or by a new allegation concerning the value of the matter in dispute,5 or by showing that the case arises under the Constitution or laws of the United States, brings it

9 Houston & T. C. Ry. Co. v. Shirley, 111 U. S. 358, 28 L. ed. 455; Fletcher v. Hamlet, 116 U. S. 408, 29 L. ed. 679; Hakes v. Burns, 40 Fed. 33; Rogers v. Van Nortwick, 45 Fed. 513; Davis v. Tillotson, 48 Fed. 606; Calderhead v. Downing, 103 Fed. 27. But see Mutual L. Ins. Co. v. Champlin, 21 Fed. 85; Swan v. Mansfield, C. & L. M. R. Co. (Ohio Com. Pl.), 4 Wkly. Law Bul. 898, and infra.

10 Hakes v. Burns, 40 Fed. 33; Kidder v. N. W. Mutual Life Ins. Co., 117 Fed. 997. But see Jackson v. Stiles (New York), 4 Johns. 493. 11 Green v. Valley, 101 Fed. 882. 12 Relfe v. Rundle, 103 U. S. 222, 26 L. ed. 337; American Nat. Bank of Denver v. National Benefit & Casualty Co., 70 Fed. 420; Green v. Valley, 101 Fed. 882 (in which case

the defendant, whose time had expired, joined with them in the application). See Robert v. Pineland Club, 139 Fed. 1001.

§ 543c. 1 Bedell v. Baltimore & O. R. Co., 245 Fed. 788.

2 Powers v. Ches. & O. Ry. Co., 160 U. S. 92, 99, 42 L. ed. 673, 675; supra, notes, 56-62. See Robert v. Pineland Club, 139 Fed. 1001.

3 Bagenas v. Southern Pac. Co., 180 Fed. 887. See supra, § 540. 4 Robinson v. Parker-Washington Co., 170 Fed. 850.

5 Northern Pac. R. Co. v. Austin, 135 U. S. 315, 10 Sup. Ct. 758, 34 L. ed. 218; Huskins v. Cincinnati, N. O. & T. P. Ry. Co., 37 Fed. 504; Enders v. Lake Erie & W. R. Co., 101 Fed. 202; Barber v. Boston & M. R. Co, 145 Fed.. 52.

6 Speckert v. German Nat. Bank,

within the removal act, the time to remove is extended until the defendant must plead to the amended pleading.7

It has been held that the same rule applies where the amendment presents an entirely new case; but not otherwise. It was said: "If the time fixed by the rule of the State court, to answer or plead to an amended complaint, is so short as to deny to the defendant a reasonable time within which to prepare and file a petition and bond, such rule, it would seem, ought not to defeat the right of removal, if exercised with reasonable promptness.

10

§ 543d. Effect of consolidation upon time for removal. A consolidation of two cases between the same parties, the matter in dispute in each case being less than the jurisdictional amount, although their aggregate exceeds this, does not authorize a removal when the original time has expired.1

§ 543e. Effect of new parties upon time for removal. Where a diversity of citizenship is created by substitution of plaintiffs, the defendant may remove the cause, if the other jurisdictional facts exist, although his time to answer the original pleading has expired. Where, after the expiration of the time of the original defendant, others are brought in by amendment, they may remove the case because of a Federal question that appeared in the plaintiff's original pleading; 2 or, it has

85 Fed. 12; Bailey v. Mosher, 95 Fed. 223; Guarantee Co. v. Hanway, C. C. A., 104 Fed. 369. But see Houston & T. C. Ry. Co. v. State (Tex. Civ. App.), 39 S. W. 390.

7 Key v. West Kentucky Coal Co., 237 Fed. 258.

8 Edrington v. Jefferson, 111 U. S. 770, 4 Sup. Ct. 683, 28 L. ed. 594; Phoenix Mut. Life Ins. Co. v. Walrath, 117 U. S. 365, 6 Sup. Ct. 768, 29 L. ed. 924; affirming judgment, Id., 16 Fed. 161 (11 Biss. 432); Wehl v. Wald, Fed. Cas. No. 17,356 (17 Blatchf. 342); Evans v. Dillingham, 43 Fed. 177, 180; Mattoon v. Reynolds, 62 Fed. 417; Mecke v. Valleytown Mineral Co., 89 Fed. 209; Youtsey v. Hoffman, Fed. Prac. Vol. III-49

108 Fed. 693; Bailey v. Cincinnati Leaf Tobacco Warehouse Co., Id.

9 Kaitel v. Wylie, 38 Fed. 865; Gregory v. Boston S. D. & Tr. Co., 88 Fed. 3; Painter v. New R. M. Co., 98 Fed. 544; Beyer v. Soper Lumber Co., 76 Wis. 145, 44 N. W. 750, 833.

10 Enders v. Lake Erie & W. R. Co., 101 Fed. 202, 203; per Baker, D. J. See Jones v. Mosher, 107 Fed. 561, 46 C. C. A. 471.

§ 543d. 1 E. A. Holmes & Co. v. United States Fire Ins. Co., 142 Fed. 863.

§ 543e. 1 Kelly V. Virginia Bridge & Iron Co., 203 Fed. 586. 2 Green v. Valley, 101 Fed. 882.