X'nONALD 'V. HOPE MIN. CO.

693

Co.

McDoNALD

et aZ.v.

HOPE MIN.

(Oircuit Oour4 D. Montana. November 16, 1891.)
1.

REMOVAL 01' CAUSES-TIME Oll' FILING PETITION-DEMURRER.

As the removal act requires the petition to be filed at or before the time "defendant is required by the laws of the state" to answer. the filing of a demurrer, instead of' an answer, as allowed by Compo St. Mont. p. 81, § 87, does not enlarge the timefqr ,filing the petition ; for the allowance of an answer after demurrer is within the of the court, and is not in accordance with any provision of law.

S.

SAlm-RULIIOF COURT.

The time allowed by the court for answering, after the overruling of such demurrer, is not "the time * * * defendant is required * * * by a rule of the state court * * * to answer, "within the meaning of that clause of the removal tor'that has reference. only to jurisdictions where the time to answer is tilted .by a rule of.<:ourt iu,s1;ead of by statute.

Ip.

Forbi8.(!cForbiB, for defendant.

J.

Wm. Bc4llon! F. W. Oole, and H. F. Titua, for plaintiffs.

On motion. to remand.

This cause is presented on a motion to remand that the petition for removal was not filed. withip the time prescribed by law. Plainti·ffs commenced their action by Jiling their complaint against defendant on the 3d day of January, 1891, in the district court of the third judicial district of the state of Montana, in and for Deer Lodge county. Summons was duly issued upon this complaint, and served upon the defendant on the 20th day of January j 1891. Defendant appeared in the cause on the 22d day of s.aid month, two days after said service, by filing a general demurrer to the complaint, specifying that the complaint did not state facts sufficient to constitute a cause of action. There seems to have been no ruling upon this demurrer. day of June, of the same year, defepdant filed its petition for removal from the above state court to this. la}V of Montana requires that the defendant in a cause, if served in the county ip which the same is commenced, must appear and answer (the corp.plaint within 10. days from the date of service of summons.· Defendant was served in the county in which the action was brought. The language of the act of congress of1887, and as corrected by the act of 1888, upon the subject of the removal of causes from the state court to the federal courts, contains this clause to the time when the petition for removal should be filed: "At the time or any time before the defendant is required by the laws of the state, or a rule. of the state court. in which suit is brought, to answer or plead to the declaration or complairit orthe plaintiff." It would seem that, taking the state statute as to the .time when a defendant is required to answer after service of summons,. and this provision upon removal\ and there cannot be much dispute as to the time when the petition for removal should be made. The party is required by the law ofthe state to answer within 10 days after .l:lervice of summons, and the statute of congress provides that when this time arrives, as provided by the state law, the petition for removal shall v.48F.no.8-38

to the state: court, on the ground

be made. Counsel for however" by the provisions of section 87, p. 81, Camp. St; Mont;; not required to anofsaid 10 days, <;ould qemul" This provisswer on the ion reads as 'follows: "The defendant may demur to the complaint et<}.. J?till this provi$within the time required ion the time prescribed by the statllte:'" It only allows that timfil to !,ubstitutea demurrer. It is not said by this pr9visiOllt)f the statute the time' for. answering is changed Of exanswer is a tended. ' 'Upon the overruling of the demurrer, the matter within,the discretion of the court. Thornwn v.. Borland, 12 Cal. 439; Bii1'7'dt'y; DelevaZ, 5S'Ga.l. 95; Alley v. Nott, 111 U. 'S.472, 4 Sup. ct. Rep·..491S-.,l'he answering, after the overruling of a demurrer, is not then in accordance with a provision oflllW, buHn accordance with a discretionary order of court granted upon tn0tion. The next presented is, wQuld'theanswering, Mter.the overrUling of a demurrel';be all answer in with .a rule of a state court, as that term was understood in the act of congress? " In the case of Spangl(?r y.Railroad Co., 42 Fed. ReJ>. 305, PHU,IP$.,J., ,says: '. "But ;by' congress; 'in illY opinion, to apply tosllcha'provision as'tha:t found in the Missouri 8'tatllte, 'unless longer time be granted 'by' the It cleady bas referelice to those states where no time isflXiedby the statute for answering, but under tbelaw the court, by rule, time, wbich is the ease in some states. " , In' where the time for'sn!lwering IS 'p'rescribed' by a rule of it *9'Uld' seem that· t1;.e petitidnshould be filed at the expiration of time. But if a defendant: shOuld 8uMtitntb a demurrer for an answer,'ahdthis should be overruled and permission given to answer, in those siateswhere this rule prevails could this lasttifue' for answering be the one at which thedC:lfendant could file his petition for removal? Also, if it was so held, would there not be two times in such states when a defendanlcould by a rule of court file such a petition? . It would 'seem to me that this is evident. !tsMms quite Cel'tain, however, that congress intended to fix aedefinitetime in which such.apetition could be filed, and not to allow one period for filing thesa.me under a statute in one state, and two periods for the sanie under'fulea' of court in anQther state; , The time fixed by the statute, or thei-ules of the courts, where 'there are no statutes, becomes a part of the act of congress upon this subject. ·.··'The views here ej!pressed are in accordance with those of Judge SAWYER, ofthiscircuit·. In the case of Austin v. Gagan, 39 'Fed'. Rep. he said':' ,;', . . ... liTbestilt\lte' means at a'riy time before 'the defendant 'required to answer by the 111:1'1'$ of the state. when the time isspecincallyregulated by the statute, rules of, practicegovetning the matter. adopted by the and by' (lOurts where the matter is, thus regulated. instead of by specific statute of the state.-not ,within the thne provided by special orders extending the time on application Iby or I!tipul!\tionl!l of the parties.", The'time allOWed fbt a party to answer upon the overruling of a d..emurrer iSA'specia} 'order. It appliewid-' one case;

II. HOPE MIN. CO.

595

Said

PHILIPS,

J., also in the case of Spangler v. Rat'lroad 00., BUpra:

otherwise, of the state judge in extending it for a month or six months, there would be no uniformity, no certainty, in the law of removal. It would in the state court, in the same jurisdiction, be one time for one defendant, and another time for another defendant, wholly dependent upon the discretion or humor of the court at the retutn time. The evident policy of congress in this enactfixed, and definite the time of such removal, and ment was to make to hasten trials; and not to permit hurtful delays by removals. Recognizing the fact, as the lawyers of thecommittee who framed the law did, that in some of the states the time for pleading by defendants summoned to court was wholly regulated by positive rule of the court, in the absence of a stated statutory time, they employed the term 'rule of the state court.' " .These decisions appear to me to interpret the statute concerning removals under consideration correctly, and, in accordance with them, the answering after overruling a demurrer is not answering under a rule of court; as that term was understood in the statute under consideration. Dillon on Removal of Causes (section 118) says upon tbis point: "In other words, it is the evid<>nt design of the statute that the petition must be6l<'ct not later than the time when the defendant is required to make his firaj; rt!sponsive allegation to the initiatory pleading on the part of the plaintHI, whether bis l'esponse takes the form of a llIea (such as the general issue) ora demurrer, or an answer under the reformed codes of procedure, or in equity." In the.case of Alley v. Nott, 111 U. S. 472, 4 Sup. Ct. Rep. 495, the Supreme court holds that a hearing of a general demurrer to a complaint, such as tbis one, interposed in this case, is a trial of a cause on its merits. If a party' can petition for the removal of a cauee after a trial under the statute of 1887, he has a greater privilege guarantied to him thereunder in some respects than under the statute of 1875. All the authorities agree that this was not intended by There are two or three circuit court decisions that appear to hold a contrary view to that I have expressed, and the decisions I have followed, but I believe that the correct rule will be found to be that a person must petition for a removal, under our statute, at the time the statute nates as 'the time for answering the complaint. Tbe motion to remand the cauS8iis hereby sustained, and the cause is remanded to the oourt from which it was removed.··

"If the time for removal can be made to depend upon action, capricious or

596

FEDERAL

vol 48.

et

·:MARTIN II. CARi'lm

at

(Owcu(t Oourt, D. Montana. November 18, 1891

L

REMOVAL 011' CAUSES-TIME 011' FILING PETITION-AMENDMENTS TO PLlIlADING.

Un.der Compo St. Mont. p. 88, § 115. which provides that in case the complaint Is amended as Of course, pursuant to the right given by that section, defendant shall 'answer within 10 days after the amended complaint is served on him where defendant waives service by demurring to ·the amended complaint, the time for him ,:to answer. and heu.ce the time to Jile a petition for removal, is within 10 days after such waiver. Stipulations between' the parties, allowing defendant further time to answer, are to extend the time in which his petition for removal to a federal court

2.

SAME-TIME ToANSWER..,..STIPULATIONS.

must be filed.

li'SAME-RIGHT TO REMOVE-CASus OMISSUS.

'Where a condition of tbe pleadings arises which is not contemplated by the raIl!oval act in the time for filing the petition, thefe is no authority for remO,\T'big the action; for, though the constitution gives the right of remQV'af, it does not act·'ex propril:) vigore, aud legislative action is necessary to carry it, into effect.

ActioI:\by James }1j. 'Martin against John F. Carter, SelenaR.Carter, the Montana Mining & Reduction Oqmpany, John W. Q.nd Samuel Whitney. The cause was removed to the United States circuit court, and C()ok and Whitney moved to remand it,., .' ,..... &; Muifty and Word' &; for defendant Montana Mining ,& Reduction Co. ., ' H. G. McIntire, for defendants Cook and Wh,itney.
KNOWLES, J. This cause is now before the court on amotion to remand the same to the state district court, in ,which the cause of action was instituted. ,The complaint was filed on the 3d day of October, 1890, and on the same day a summons was issued in the cause. It does not appear from the 'return of the sheriff on the summons that it was served upon the defendant Montana Mining & Reduction Company,but on the 8th day of November, 1890, said defendant filed its demurrer to plaintiff?s· complaint. On the 8th day of December, of the same year, plaintiff filed an amended complaint. On the 6th day;Of :December preceding this plaintiff and said defendant made and filed a stipulation, to the effect that plaintiff should be entitled to file an amended complaint at any time during the December term of court for 1890, and that said defendant should have until the 31st day of January, 1891, to plead thereto. On the 26th day of January said defendant filed a demurrer to this amended complaint. On the 18th of May following said defendant filed its petition for a removal of the cause to this court. There are two questions presented for consideration in the said motion to remand: First. Did said defendant file its petition for removal in time? and, second, was this a severable cause, so that said defendants could have their part of the issues presented in the complaint removed to this court?

.On 'Motion tp Remand.