First Littleton Bridge Corp. v. Connecticut River Lumber Co.

71 F. 225 | U.S. Circuit Court for the District of New Hampshire | 1895

PUTNAM, Circuit Judge.

I find that the writ was returnable to the term of the supreme court of the state held on the third Tuesday of September, 1891, and that at that time the following rule of that court was iu force:

“Pleas in abatement shall be delivered (o the counsel of the adverse party or filed with the clerk, and notice thereof put upon the docket within the first four days of the term.”

1 find that there is no claim that this rule is not peremptory, with reference to the period named in it, or that the court has power to extend ir. I find that the petition for removal was not filed in the state court until after the expiration of the period of four days named in the rule, so that, on the authority of Martin’s Adm’r v. Railroad Co., 351 U. S. 673, 684, 14 Sup. Ct. 533, it was not seasonable. I find that there was no actual waiver of the defect, with any intention to waive. I find the petitioner did not serve the plaintiff wiih a copy of the removal papers, or notify it that the petition had been filed, I find that no appearance lias been entered in this court by the plaintiff, as provided by rule 5, which was in force on and after September 1, 1891, and that no appearance by the plaintiff, in any form, has been actually made in this court, except for the purpose of making the motion to remand. I find that the attorneys for the plaintiff intended to enter their appearance, wrote the clerk to make the entry for them, and that the clerk called their attention to the necessity of a formal entry under rule 5, but that, as already said, no appearance was in fact entered. I find that certain conversations and correspondence have taken place between the attorneys of the plaintiff and those of the defendant toucldng this case and its trial on the merits; but I am unable to find, from the facts submitted, that the plaintiff or its attorneys knew, or were •bound to know, before these conversations and correspondence, either with the clerk or the defendant’s attorneys, or until about the time when the petition to remand was filed, that the removal papers were not seasonable. Therefore I do not find that the plaintiff has. by unreasonable delay or otherwise, waived, as a matter of fact, the defect in the removal proceedings. The actual entry of a general appearance by the plaintiff, or proceedings by it or its attorneys, in open court, prior to the filing of the petition to remand, if such had been proved, would probably have taken effect as a waiver by force of law. But, in the absence of sufficient proof of the matters hereinbefore stated, I am of the opinion that the inchoate and executory transactions referred to do not have any such effect.

As the matter now stands, the plaintiff is entitled to its costs in this court. Martin v. Snyder, 148 U. S. 663, 664, 13 Sup. Ct. 706. Therefore the clerk will enter the following order: Ordered, that the findings of the court accompanying this order be filed and entered of record, and that an order be entered remanding the case, with costs for the plaintiff.