88 F. 3 | U.S. Circuit Court for the District of Massachusetts | 1898
Tbe bill of complaint in tbis case was filed in tbe state court on March 22, 1895. By tbe eigbtb rule of chancery practice of tbe state court, a defendant is required to file bis answer, plea, or demurrer within one month after tbe day of appearance, tbe day of tbe appearance being tbe return day of tbe subpoena. A subpoena was issued in tbis case returnable at tbe May rules, 1895, and was duly served on tbe defendants. Tbe defendants appeared, and answered to tbe bill, and on July 3, 1895, tbe plaintiff filed bis replication. The bill was subsequently dismissed as to all tbe defendants except tbe Boston Safe-Deposit & Trust Company. On April 10, 1897, tbe plaintiff obtained leave of court to amend bis bill of complaint. The petition of tbe trust company for removal was filed June 14, 1897.
Tbe act of congress of 1887 (24 Stat. 554) provides that any party entitled to remove a suit from a state court into the circuit court of tbe United States “may make and file a petition in such suit in such state court at tbe time, or any time before tbe defendant is required by tbe laws of the state or tbe rule of tbe state court in which such suit is brought to answer or plead to tbe declaration or complaint of tbe plaintiff.” In construing tbis statute, tbe supreme court has repeatedly held that tbe defendant’s right of removal can only be exercised before tbe time be is required to plead in tbe state court. In Martin’s Adm’r v. Railroad Co., 151 U. S. 673, 687, 14 Sup. Ct. 533, 538, tbe court, speaking through Mr. Justice Gray, observes:
“Construing the provision now in question, having regard to the natural meaning of its language, and to the history of the legislation upon this subject, the only reasonable inference is that congress contemplated that the petition for removal should be filed in the state court as soon as the defendant was required to make any defense whatever in that court, so that, if the case should be removed, the validity of any and all of his defenses should be tried and determined in the circuit court of the United States.”
See, also, Goldey v. Morning News, 156 U. S. 518, 524, 15 Sup. Ct. 559; Railway v. Brow, 164 U. S. 271, 277, 17 Sup. Ct. 126; Manley v. Olney, 32 Fed. 708. Motion to remand is granted.