113 N.J. Eq. 498 | N.J. Ct. of Ch. | 1933
Bills of complaint were filed by the above named complainants against the above named defendant, on July 18th, 1933. The bills pray for a preliminary mandatory injunction and *500
other relief against the defendant. Upon the filing of the bills orders were issued requiring the defendant to show cause on July 24th, 1933, why the ad interim relief therein sought should not be granted. On July 20th, 1933, John R. Hardin, Jr., of the firm of defendant's solicitors, requested the solicitor of the complainants to continue such orders to show cause to July 31st, 1933, for hearing and argument, and agreed to acknowledge service of subpoenas in behalf of defendant. Letters subsequently passed between the solicitor of the complainants and the solicitors of the defendant, which clearly confirms the aforesaid arrangement. Formal stipulations to effect such arrangement were mailed by the solicitor of the complainants to the solicitors of the defendant. The solicitors of the defendant concede the aforesaid arrangement, but urge that inasmuch as they did not sign the form of stipulation forwarded to them by the solicitor of the complainants to clearly manifest such arrangement for continuance of the order to show cause and argument thereon, the arrangement which they concede they made with the solicitor of the complainants is not binding upon the defendant so as to estop the defendant from petitioning for a removal of complainants' bills of complaint and orders to show cause issued thereon, to the federal court. Aside from the unethical attempt, as I conceive it to be, of the solicitors of the defendant to endeavor to recede from their aforesaid arrangement with the solicitor of complainants for one week's continuance of the orders to show cause for hearing and argument thereon, and to acknowledge service of subpoenas in behalf of defendant, I am of the opinion that in equity the conduct of the solicitors of the defendant in such respect should be regarded as a waiver of any right of the defendant to remove such bills of complaint and orders to show cause from the court of chancery to the federal court. Waiver of right of removal may be not only by express agreement, but by conduct also. I am of the opinion that the aforesaid conduct of the defendant's counsel should be regarded as equivalent to defendant's waiver of right of removal from this court to the federal court and it ought to be enforced as such by this court. In St. *501 Louis-San Francisco Railway Co. v. Simmons (1926),
In view of the foregoing I am of the opinion that the complainants may proceed to hearing under the orders to show cause heretofore issued by this court based upon the bills of complaint filed in behalf of the above named complainants, and that the filing by the defendant of the petitions for removal, aforesaid, do not effect prohibition of this court's power and authority to proceed in such respect.