118 F. 782 | U.S. Circuit Court for the District of Vermont | 1902
This suit was begun by the plain-, tiffs, as “of New Hampshire,” against the defendant, as a corporation duly established by the laws of the commonwealth of Massachusetts, and corporations and partnerships, as trustee, having goods, chattels, rights, or credits of the defendant in their hands or possession, of
“Now comes the plaintiff, and moves this court to remand the above-entitled cause to the county court in and for the county of Windham and state of Vermont, on the ground that the plaintiff’s writ and process in the above-entitled cause was dated and issued by the clerk of said Windham county court on the 3d day of December, 1901; that by the laws of the state of Vermont, and the court rules governing the procedure in the several county courts in the state of Vermont, the defendant in the above-entitled cause was required to enter his appearance in said cause with the clerk of the Windham county court on or before the expiration of 42 days from the date of the writ and process in said cause, and to file all dilatory pleas and dilatory motions within 10 days after the time for entering such appearance should expire, and to file all special pleas, the general issue, with notice, pleas, and declarations in set-off and demurrers, within 12 days after the time for entering such appearance should expire, and, if neither special pleas nor the general issue with notice is filed within the time limited, the general issue shall be considered as pleaded; that the defendant in the above-entitled cause did not file with the clerk of the Windham county court, in the state of Vermont, his petition and prayer for the removal of said cause to the circuit court of the United States for the district of Vermont within the time for filing dilatory pleas and dilatory motions and special pleas, the general issue, with notice, pleas, and declarations in set-off and demurrers, as aforesaid, and did not file said petition and prayer with the clerk of said Windham county court until the 13th day of February, 1902; and on the ground that the said petition and prayer was not filed with the clerk of said Windham county court within the time prescribed by, and according to the statute of, the United States of America in such case made and provided.”
The motion to remand has been submitted upon these pleadings and proceedings.
The petition for removal, although filed in the state court, comes to the circuit court as a part of the record, and is the pleading of the party seeking removal, and on the allegations of which the right of removal rests, and to which the pleadings of the other party, if any, in that respect, must refer. Carson v. Dunham, 121 U. S. 421, 10 Sup. Ct. 1030, 30 L. Ed. 992; 2 Fost. Fed. Prac. (3d Ed.) § 393. This is not such a case in which it might appear at any time that it “does not really and substantially involve a dispute or controversy
Motion dismissed.