54 S.E. 434 | N.C. | 1906
The petition to remove was filed on 4 December, 1905, before Judge Neal, then presiding in the courts of the Sixteenth Judicial District. His Honor denied the motion, and defendant appealed. The summons was duly returned to Jackson Superior Court, convening on 22 May, 1905. At that term the court made an order giving plaintiff 90 days to file complaint and the defendant 90 days thereafter to answer. There was no exception taken to this order. On 27 September, 1905, the plaintiff filed his complaint, demanding $25,000 damages. It is contended that until the filing of a complaint defendant had no notice that a sum over $2,000 would be demanded, thus bringing the case within the jurisdiction of the Circuit Court of the United States, and therefore could not file his petition until the fact was made known upon which such jurisdiction depends. (595) There might be force in the contention but that it appears that the defendant did not except to the order granting such time, and therefore is taken to have consented to it. It further appears that after the complaint was filed, at the October Term, 1905, the defendant again appeared by counsel and again acknowledged the jurisdiction of the court, and asked for time to answer, and was granted 60 days. Of course, the defendant could not be required to answer until after complaint was filed, but when it agreed to the extension of the time for pleading, the defendant submitted voluntarily to the jurisdiction of the State Court. *466 If the defendant desired to reserve the right of removal, its counsel should have excepted at the time to the order extending the time within which the pleadings should be filed. Wilcox v. Ins. Co., 60 Fed., 929;Schipper v. Cordage Co., 72 Fed., 803. It seems to be well settled "that a petition for removal filed after the statutory period has expired comes too late, even though filed within the time allowed for answering by the order of the court, where such order is based on the stipulation of the parties.Bank v. Keator, 52 Fed., 897.
Had the defendant duly excepted to the order extending the time to plead, he should then have filed his petition to remove not later than the October Term, 1905, of the Superior Court, according to the latest decision of the Supreme Court of the United States upon the subject. Remingtonv. R. R.,
Judgment affirmed.
Cited: Ford v. Lumber Co.,