FEDERAL REPORTER, vol. 09.

AUSTIN

v. GAGAN et al.

August 5, 1889.)

(Circuit Court, N. D. California. 1.

REMOVAL OF CAUSES-CASE ARISING UNDER UNITED STATES STATUTE-PETITION.

In order to remove a cause from a state to a United States court, under the act of 1887, on the ground that it arises under a statute of the United States, the record must affirmatiyely show. from the facts alleged, that some disputed construction of the statute will arise for decision in the case.

2.

3.

SAME.

Where the contest is about the facts only, the law being undisputed, there can be no removal.
SAME-TIME OF ApPLICATION-SUBSEQl:ENT EXTENSION OF Tum TO PLEAD.

The application for removal, under the act of 1887, must be made at or before the expiration of the time to answer. as prescribed by the statute or rules of court in force at the time of the service of the summons. Subsequent extensions of time to answer by special orders of the court. or by stipulations of the parties, cannot extend the time to apply for a removal under the statute.
SAME-Tum TO FILE BOND.

4.

The bond required by the statute, as well as a petition, must be filed at or before the time for answering expires, to effect a removal.
SAME-FILING NUNC PRO TUNC.

5.

The court cannot, by an order made after the time to answer has expired, directing the bond to be filed nunc pro tunc as of a day prior to such expiration of time, cut off the right of the plaintiff to remain in the state court, which has already become vested and fixed under the statute.

{Syllabus by Ute Court.}

On Motion to Remand. James G. Maguire, for the motion.
F. 1. Wilson, contra.

Before SAWYER, Circuit Judge. SAWYER, J. One ground of the motion is, that the petition does not present a case, which appears from the facts stated, to arise under the laws of the United States. One party claims the land in dispute as a homestead, and the other that the land is mineral, and therefore, not subject to be entered as a homestead. But it does not appear from any facts stated, that there is any disputed construction of either statute un· del' which the respective parties claim. For anything that appears, both parties may agree as to the construction of the statutes, and the whole case turn upon a question of fact, as to whether the land is mineral land or not, or whether either party has performed the acts conceded to necessary to give the right claimed. Indeed I infer from the facts stated in the petition, that the contest will really be upon the facts, and not the law. In my judgment the record does not present a case for removal nnder the decision in Trajton v. Nougues, 4 Sawy. 178, which was followed by Justice FIELD in ()old- Washing Co. v. Keye6, whose ruling was affirmed in 96 U. S. 199. See, also, McFadden v. Robinson, 10 Sawy. 398, 22 Fed. :Rep. 10; Hambleton v. Duham, 10 Sawy.489; 22 Fed. Rep. 465; and Theurkaujv.lreland, 11 Sawy. 512,27 Fed. Rep. 769,-to the same effect. Under any other rule the circuit court would

AUSTIN tl. GAGAN.

627

have jurisdiction-at least until the want of jurisdiction is disdosed at the trial-in every action of ejectment, where either party traces titles to a United States patent, no matter what the matters of contest may be, and thus nearly all the litigation respecting titles to lands lying west of the Alleghany mountains might be swept into the national courts. The jurisdiction should affirmatively appear upon the record from the facts stated, and not from the mere statement of the conclusion of the petitioner. The petition is insufficient in this respect. The summons was served on April 8, 1889, which required the parties to appear and answer in pursuance of the provisions of the statute of California, within 10 days after service of summons. The time for answering, then under the laws of California, expired on April 28th. The time for answeringwas extended from time to time by stipulation of parties till May 29th. On the latter day the defendants answered, and at the same time filed their petition for removal. This was not in time. The party must file his petition for removal" at the time, or any time before the defendant is required by the la ws of the state, or the rules of the state court in which the suit is brought, to answer, or plead to the declaration or cornplaint of plaintiff, "-not at or before the expiration of the extended time within which parties may choose to stipulate for filing an answer, or demurJ'''The statute means at any time before the defendant is required to answer by the laws of the state, when the time is specially regulated by the statutes, and by the general rules of practice goveming the matter adopted by the courts, when the matter is thus regulated, instead of by specific statutes of the state,-not within the time provided by cial orders extending the time, or application by or stipulations of the parties. As we said in Dixon v. Telegraph Co., 38 Fed. Rep. 377 1 the prior act allowed the petition to be filed at any time during the term at which it might first be tried. But the supreme court, repeatedly, held, that the act meant the term at which it could be first at issue, and be ready for trial, provided the parties filed their pleadings at the time appointed by law, whether the court, or the parties were ready for trial or not. And it was also held that the extension of the time ofjoining issue by orders of the court, or a stipulation for time between the parties, could not extend the time for filing a petition for removal to the next term. Car Co. v. Speck, 113 U. S. 84, .5 Sup. Ct. Rep. 374; Gregory v. Hartley, 113 U. S. 746, 5 Sup. Ct. Rep. 743. And this has often been the ruling in this court as will be seen by consulting the reports of its decisions. Even the statute as tnus construed was deemed by congress to he too liberal, and in 1887 the act was amended so as to require the petition to be filed at or before the time when the law or esta blished rules of court required the defendant to plead. This law must be construed in the same way as the former, as to the matter of extending the time to plead by the court, or by stipulation of the parties. The party must make his election; and file his petition at, or before the time when his pleading is first due under the law, or rules as they exist when service of summons is made, or he waives his right to a removal. This must be the rule) or the parties by stipulation, or the court by special orders)

628

FEDERAL REPORTER, vol. 39.

on their application, may extend the time to apply for a removal, indefinitely, and the policy of the law be thereby defeated. See, also, Keeney v. Roberts, and cases cited, 12 Sawy. 39, post, 629,and Theurkaufv. Ireland, 11 Sawy. 512, 27 Fed. Rep. 769. The policy of the law, is to require parties to take the first opportunity to change the forum, and in default thereof the right is ·waived. Under the old law, the party was compelled to elect upon first appearing. The petition is too late and the improperly removed on tha, ground also. The bond tiled with the petition on the last day of the time to answer as extended by the stipulation, contained no amounts of money, an unfilled blank having been left, so that it did not appear fm what money the obligors were bound. Afterwards, on June 27th, another bond was filed rec.;iting the defect in the first bond filed and that this bond, which was in due form, was filed in place of the prior bond. The court made an order that it be filed nunc pro tunc as of May 27th. But clearly the court could not by this order, give the bond a retroactive effect, so as to cut off a right which had vested in the mean time. Kow the first bond was effective, or it was not. If it was effective, there was no necessity for the second, and it was useless. If it was not effective, then the case was not removed by the filing of the petition or until after the filing of the new bond, and this was long after the expiration of the time prescribed by the statute, and the right of the plaintiff to remain and litigate his case in the state court, had become vested and fixed. It was not, thereafter, in the power of the court to divest it by this aT any other order. The case was not fact, or in law removed untll after the time for removal had expired. That the bond was necessary to effect a removal, seems clear. The statute provides for the filing of both a petition and bond containing certain prescribed conditions. The required petition and bond having been filed within the time prescribed, the statute proceeds: "It shall then be the duty of the court to accept the said petition and bond, and proceed no further in such suit, "-that is to say, after filing of the prescribed petition and b-:md, but not till" thell." See Desty, Removal, 142. The filing of a bond is required by the same language as the filing of a petition, and it must receive the same construction with reference to the bond, as with reference to the petition. The paper filed as a bond, was so radically defective, in matters of substance, that it was no bond at all. Consequently, no bond was filed till a month after the stipulated extension of time to answer had exph'ed, and two months after the lapse of the statutory time. It was therefore without eflect. In Burdick v. Hale, 7 Biss. 96, the bond, like that under consideration, had no sum specified-the place for the amount being left blank-and Circuit Judge GRESHAM, and I think rightly, held, the defect to be fatal, as the court was not authorized to dispense with any substantial condition to a removal required by the act. In Torrey v. Locomotive Works, 14 Blatchf. 269, Judge BJ,ATCHFORD, now of the court, made a similar ruling as to a less vital defect in the bond. A similar decision was made in McMurdy v. In-

KEENEY V. ROBERTS.

629

8urance Co., 4 Wkly. Notes Cas. 18. Judge COXE in the circuit court, N. D. New York, approved and followed these decisions with reference to a bond which made no provision for payment of costs. Webber v. Bishop, 13 Fed. Rep. 49. So Field in his treatise on Jurisdiction of the Federal Courts says: "If the bond is manifestly defective, as where no sum for the penalty is inserted, this would be ground for remanding the case to the state court from which it come." Section 190. See, also, section 178, p. 156. There are some decisions holding that slight defects may be cured, as in Harris v. Railroad Co., 18 Fed. Rep. 833, amI cases cited. But none of them are cases where substantially there was no bond at all, till Ion!!; after the time for removal had expired. In my judgment the court cannot dispense with any substantial condition to a removal required by the statute, and cannot supply a substantial condition after the time for removal has expired, :lnli the right of the other party has attached. For all of the various reasons ill .icated, a removal was not effected. The cause must, therefore, be remanded with costs, and it is so ordered.

KEENEY v.

ROBERTS.

(Circuit Court, D. California.

REMOVAL OF CAUSES-ACT OF

July 19, 1886.)1

1875-TUiE OF REMOVAl,. Under the removal act of 1875 a case cannot be removed after the term at which it could have been first tried in the state court, and where counsel do not take the objection it is the duty of the court to do so.

Before SAWYER, Circuit Judge. SAWYER, J. This suit was commenced in the superior court of the state December 27, 1881. The answer was filed, and the case put at issue. and was ready for trial, :May 2, 1882. The petition for removal to this court was not filed till January '25, 1884-nearly two years after it could have been tried. Not less than half a dozen terms of the superior court passed at which it could have been tried. The application for removal was too late, and the removal at that time was not authorized by the act of 1875, under which the petition was filed. MacNaughton v. Railroad Co., 10 Sawy. 113, 114, 19 Fed. Rep. 881; Car Co. v. Speck, 113 U. S. 86, 87,5 Sup. Ct. Rep. 374; Greg(Yry v. Hartley, 113 U. S. 745, 5 Sup. Ct. Rep. 743. The court should take the objection, if counsel do not. Williams v. Nottawa, 104 U. S. 209-211; Farmington v. Pillsbury, 114 U. S. 144,5 Sup. Ct. Rep. 807. The petition and record do not show a proper case for removal, and no order for removal was in fact
l'l'his opinion was not published at the time of its delivery because of failure to receive a copy of it. It is published at this time on account of its citation in Austin v. Gagan, ante, 626.