55 F. 881 | U.S. Circuit Court for the District of Western Wisconsin | 1893
This is a motion to remand the cause back to the circuit court of Bayfield county, Wis., whence it originated. It was begun in that court on September 24, 1892. The summons and complaint were served, and the time to answer the complaint expired on October 14, 1892. On October 12th, two days before the time to answer expired, the defendant filed a petition and bond, and applied for a removal of the cause to this court An order for the removal was made by the state court, and a copy of the record was filed in ibis court on October 17, 1892. On November 1st an answer to the complaint was filed by the defendant in this court, and on November 21st a reply by the plaintiffs. On December 8, 1892, a motion by the plaintiffs was made to remand the cause to the state court, and the same was so remanded, on the ground that the requisite jurisdictional facts were not alleged in the petition to entitle the defendant to a removal. The diverse citizenship of the parties was not set, out, nor did it appear anywhere in the record. On April 8, 1898, four months after the case was sent bade to the state court, and after further proceedings were had by the parties in that court, and six months after the time for removal had expired, a second or amended petition was filed by the defendant in the state court for a removal of the cause to this court, and an order was made for the removal. The cause comes up now on a second motion to remand to the state court, and the question is whether, under these circumstances, a removal of the cause to this court has been effected.
This court had supposed that the rule was fairly well settled in this circuit that the right of removal depended upon the defendant’s filing a proper petition alleging all the necessary jurisdictional ■facts, accompanied by a proper bond, within the time prescribed
By the jurisdiction act of 1789 the application for removal had to he made by the defendant “at the time of entering his appearance.” If, at the time of appearing in the case, the defendant did not make his application and file a petition stating the necessary jurisdictional facts, the right was lost. He could not do it afterwards. Under the acts of 1866 (14 Stat. 306) and of 1867 (14 Stat. 558) the application might be made at any time before the trial or final hearing of the cause in. the state court. These statutes mark the extreme swing of the pendulum in favor of the jurisdiction of the federal courts over cases begun in the- state courts. Under these statutes abuses sprung up. The defendant could experiment as long as he pleased in the state courts, and then, after the case could he delayed no longer, apply for a removal; so that the right came to be too frequently exercised to delay the cause, rather than to obtain an unprejudiced hearing in the federal court. The judiciary act of 1875 (18 Stat. 470) in some measure was intended to correct these abuses by restricting the right Under that act the petition must he made and filed “before or at the term at which such cause could he first tried, and before the trial thereof.” As will he seen, this act, although a great restriction upon the acts of 1866 and 1867, still gave great latitude in making the application, compared, with the original judiciary act passed .by the first congress. By the acts of 1887 (24 Stat. 552) and of 1888 (25 Stat. 435) the time was further greatly restricted. Under those acts 'the defendant must make and file a petition “at the time, or any time before, tbe defendant is required by the laws of the state or the rule of the state court in which such suit is brought to answer or
The objection in practice to this doctrine is that it sets aside the rule of the statute, and substitutes in its place the discretion of the state court. It was held in that case, very properly, that the United States circuit court, upon remanding the cause, had lost all control over it, and could neither entertain a new petition for removal, nor an application to amend the old one. The defendant must make Ms application to the state court. But, suppose the state court had refused to allow an amendment to the petition; it would follow that no removal could be had. But, if it be discretionary with the state court to allow an amendment to the petition on a second application after the time prescribed by congress ha®
The rule of the United States courts has always been that no •discretion existed, in the state court. It may pass upon the right of removal, and grant or refuse to grant an order; but, so far as the question of removal goes, and the jurisdiction to he acquired thereby by the United States circuit court, it is of little moment what the order or decision of the state court may he. The jurisdiction of the United States court will always depend upon a compliance or noncompliance with the law of congress in force at the time, and not in any measure upon the decision of the state court. Neither an order refusing nor an order granting a removal can affect the jurisdiction of the circuit court. Bank v. Corbett, 5 Sawy. 172; Kern v. Huidekoper, 2 Morr. Trans. 597; Fisk v. Railroad Co., 6 Blatchf. 362; Hatch v. Railroad Co., Id. 105, 111; Kanouse v. Martin, 15 How. 198; Railroad Co. v. Mississippi, 102 U. S. 136; Railroad Co. v. Koontz, 104 U. S. 5. The answer, in theory, to such a doctrine is that there is nothing in substance to be related back to. The petition not alleging the necessary jurisdictional facts, it is a nullity, and the doctrine of relation has no application. There is, of course, no objection on principle to the amendment of a petition. There is no objection to the filing of a second petition, provided it is done within the time prescribed by congress. But when the time goes by the right is lost. To allow an amendment to the petition after that is thq ©ame as allowing a newpetition, and either is a clear violation of the law. One purpose of the law was a severe restriction in respect to the time.. The object was to require the party to change the forum at once, before waiting to experiment in the state court, either to contest the tribunal, or for mere purposes of delay. In this case six months had elapsed since the time to answer had expired. Other proceedings had been had in the state court after the case was remanded. Since the statutory time for removal had elapsed, there have been two terms of the state court in that county when the cause may have been tried, and it now stands noticed for trial Hiere during the present month. The pleadings have been amended in the state court, and the time for answering an amended complaint had expired before the second petition for removal was filed. Depositions, it seems, were also taken. If the cause can be removed upon the discretion of the state court by allowing an amendment to an original and insufficient petition there can be no limit, so far as time goes, and the removal can he allowed at any time.
Another purpose of the statute was to secure certainty. It was never contemplated that a casé should be dangling for so long a time in midair between the two courts, neither party nor the court, knowing whether it might or might not he removed. The rule of the statute is certain, and easy to be complied with. This
The motion to remand the case to the state court is granted.