Imágenes de páginas

removal is sought by a non-resident of the latter State. 2

1 Hirsch v. Case Threshing Mach. Co., 31 Cent. L. J. 92; Guinault v. Louisville & N. R. Co., 41 La, An. 6 So. Rep. 850.

2 Myers v. Murray, 43 Fed. Rep. 695; 32 Am. & Eng. Corp. Cas. 215.

$ 105 g. Allegation as to amount in controversy.-If the amount in dispute appears in the petition for removal, it is sufficient, although it does not appear in the original petition in the action.'

A declaration containing a special count on an insurance policy for $2,250, and common counts in assumpsit for $2,000, including as in the first count, shows that the amount in dispute exceeds $2,000; the action is removable under the Act of 1887.2 Allegations that the property in dispute is worth over $5,000 are not sufficient to show its value when the action was commenced three years before. After the increase in the amount by Act of 1887, an amendment claiming a sum sufficient was allowed where it did not appear that the damages might not be actually as great as the amendment claimed. In a bill for specific preformance an amendment alleging that the present value of the land is $3,000 brings the controversy, as to amount, within the jurisdictional limits of the circuit court, as fixed by the Act of March 3, 1887.5

1 Banigan v. Worcester, 30 Fed. Rep. 392.
2 Platt v. Phenix Assur. Co. of London, 87 Fed. Rep. 730.
3 Strasburger v. Beecher, 44 Fed. Rep. 209.
4 Davis v. Kansas City S. & M. R. Co., 32 Fed. Rep. 863.
5 Johnston v. Trippe, 33 Fed. Rep. 530.


§ 105 h. Pendency of suit the foundation of the right to remove under Act of 1887.—The portion of the Act of 1887, requiring the petition for removal to be filed within the time in which defendant is required to answer, is applicable to actions pending, and in which the time for answering had not expired at the time of the enactment. The foundation of the right of removal is the mere pendency of a suit in a State court between a citizen of the State in which it is brought and a citizen of another State. The time for answering does not expire so long as the suit is not entered by the plaintiff, where the rules of the State court require defendant to appear at a certain time and answer within forty days from return



day or the day for appearing. 3 An application to remove a case from a State court of Washington, which was pending at the admission of the State in a Territorial court, is not too late because a stipulation had been signed and filed in the State court to submit the case for decision, where it had not been acted upon. A stipulation to send the case to a master to “take testimony and report the same,” was nothing more than an agreement for the appointment of an examiner to take testimony, and not the beginning of the trial, so as to preclude a removal on the ground of citizenship. A suit begun in a State court by service of process on a firm through one of its members, a subsequent service on another member does not make it a non-suit, and the partner subsequently served cannot remove if the right to remove as to the partner previously served was lost by delay.6 Where the Federal court has remanded the cause because of the defective record and petition, an amended petition, filed in the State court, relates back to the time when the original petition was filed, and is in time if that was.

1 Simonson v. Jordan, 30 Fed. Rep. 721.
2 Fisk v. Henarie, 32 Fed. Rep. 417.
3 Sowles v. Witters, 43 Fed. Rep. 700.
4 Carr v. Fife, 44 Fed. Rep. 713.
5 Carson v. Hyatt, 118 U. S. 279.
6 Fletcher v. Hamlet, 116 U. S. 408.
7 Freeman v. Butler, 39 Fed. Rep. 1.


§ 105 i. Time to file petition governed by rules of State court, Act of 1887.-Under the Act of 1887, a defendant must file his petition within the time in which by the laws of the State or the rules of the State court he is required to file his original answer or plea, and not within the time when he is required or may elect to file an amended answer. This does not mean that the cause may be removed at any time before the expiration of an indefinite period contingent upon an answer containing a demand for affirmative relief and a reply thereto. ? The petition must be filed in the State court at or before the time at which a plea is due, according to the State practice. It is filed in time if filed before or at the time defendant files his plea to the declaration, although the original time allowed by the code has expired, as the right of removal is coextensive with the right to plead in such case. The fact that a motion to take the case from the files has been disallowed and a demurrer interposed and overruled, before an application for removal is made, does not make the application too late if made be. fore the time required to answer or plead. Where defendant was ordered to plead, answer or demur on the first Monday of May dgment pro confesso would be entered on the first Monday in June, he must plead on the latter date though no judgment has been taken. The requirement of the statute is complied with by the timely filing of the petition, though it is not actually presented until after the expiration of the time to plead.? An application on the ground that the cause arises under a Federal statute must be made at or before the expiration of the time to answer by the rules of court in force at the time of service of summons. 8 And this is so whether the rule of court be general or special under a statute which fixes a time for an appearance, in term time, but prescribe3 no time to answer or plead.' If the defendant files pleas in the abatement of the wriš within the time limited by the code, and neither an order of the court nor any general rule of practice fixes some time as a limit for further pleading, the right of removal continues as long as the right to plead lasts, and a removal petition is in time filed at or before the time of pleading to the declaration or complaint. 10 It is the expiration of the time allowed to defend which terminates the right of removal, and the filing of a demurrer, plea, or answer does not shorten the time. 11 Pleas in abatement or other dilatory pleas which do not reach the merits of the cause, are not pleas or answers to the declaration, within the meaning of the Act of Congress. 12 Where the defendant is ruled to answer on the third day of the term, and on the fourth he files a plea in abatement, to which on the fifth day the complainant demurs, and on the sixth the demurrer is sustained, a petition for removal on the seventh day is too late. 13 It depends upon the time within which he is required to serve or file his original answer or plea, and not an amended or supplemental answer. der the Act of 1887, on the ground of diverse citizenship, where after the time to answer, or plead, the complaint is

14 Untime, 15

amended, a petition filed before the next term is filed in

So where the petition and bond are filed, after demurrer to the original complaint is sustained, it is within the statutory time. 16 The time for removing a cause should be computed with reference to an amended petition which makes a substantially different suit from thatstated in the original petition. 17 Where a petition for removal well states two grounds-one that of citizenship, the other that of local pr udice—the removal may be sustained although the petition was filed too late to secure a removal on the former ground, not being before or at the time at which the suit could be first tried. 18 The Act of March 3, 1887, requires petitions for removal on the first ground, citizenship, to be filed at the term to which the case is returnable, and those on the second ground, local influence, “ before trial,” and the hearing and determination of a demurrer is a “ trial” within the meaning of that act. 19

1 Woolf v. Chisholm, 24 Blatchf. 405.
2 Doyle v. Beaupre, 39 Fed. Rep. 239.
3 Kansas City etc. R. Co. v. Daughtry, 138 U. S. 298.

4 Lockhart v. Memphis etc. R. Co., 33 Fed. Rep. 274; Gavin v. Vance, 33 Fed. Rep. 84; Burck v. Taylor, 33 Fed. Rep. 531.

5 Tennessee Coal etc. Co. v. Waller, 37 Fed. Rep. 545. 6 Tennessee Coal Co. v. Waller, 37 Fed. Rep. 545. 7 Burck v. Taylor, 39 Fed. Rep. 581. 8 Austin v. Gagan (Cal.), 39 Fed. Rep. 626. 9 Amsden v. Norwich Union F. Ins. Soc., 44 Fed. Rep. 515. 10 Lockhart v. Memphis & L. R. Co., 38 Fed. Rep. 274. 11 Gavin v. Vance, 33 Fed. Rep. 84. 12 Craven v. Turner, 19 Atl. Rep. 864. 13 Browning v, Reed, 39 Fed. Rep. 625. 14 Woolf v. Chisholm, 24 Blatchf. 403. 15 Huskins v. Cincinnati etc. R. Co. (Tenn.), 3 L. R. A. 545. 16 Delbanco v. Singletary, 39 Fed. Rep. 177. 17 Evans v. Dillingham, 43 Fed. Rep. 177. 18 Neale v. Foster, 31 Fed. Rep. 53. 19 Lookout Mountain R. Co. v. Houston & Co., 32 Fed. Rep. 711.

§ 105 j. Subsequent extensions of time to an. swer cannot extend time for removal.-Under the Removal Act of 1888, section 3, an extension of the time to file the answer beyond the time expressly provided in the State statute does not extend the time to file a petition for removal beyond that time. An oral agreement between the parties that no answer would be required will not extend the time to file a petition for removal.2 An extension of time to answer, by consent of parties, does not extend the time for filing the petition for removal.3. Where a defendant, after the time to answer has expired, procures an ex parte order extending his time, contrary to the practice in the State court, and then files an application for removal, the application is not filed, within the meaning of the Removal Act of March 3, 1887, “before the defendant is required by the laws of the State court” to answer the complaint. Under the act of March 13, 1888, where the State law requires the defendant to plead on or before the third day of the term, "unless longer time be granted by the court,” a petition for removal cannot be filed after the third day of the term, although the defendant's time for answering has been extended by order of court, since such an order is not a rule of court within the meaning of the Federal statute.“

1 Velie v. Manufacturers' Accident Indemnity Co., 40 Fed. Rep. 545; Austin v. Gagan (Cal.), 5 L. R. A. 476.

2 Dwyer v. Peshall, 32 Fed. Rep. 497.
3 Dixon v. Western Union Tel. Co., 38 Fed. Rep. 377.
4 Hurd v. Gere, 38 Fed. Rep. 537.
5 Spangler v. Atchison etc. R. Co., 42 Fed. Rep. 305.

§ 105 k. Order extending time.-- The court does not allow time to be extended by an order of the State court under a statute fixing the time, “unless longer time be granted by the court”; yet the time may be extended by the court for good cause shown, or by consent of parties. But the petition must be filed before the expiration of the time allowed by law or stipulation for answering in the State court.3 Where, on the day that a defendant was required by State statute to plead, he appeared specially in the State court and moved to set aside the service of summons, without an order or rule of court extending his time to plead, such time was not thereby extended so as to give him any right thereafter to file a petition and bond for removal to the circuit court. If the plaintiff have leave to amend a sheriff's return, it necessarily extends the defendant's time for pleading indefinitely, under the Tennessee practice, and the time for removal is like. wise extended.5 But the omission of the plaintiff to ex


« AnteriorContinuar »