40 F. 545 | U.S. Circuit Court for the District of Eastern Wisconsin | 1889
The plaintiff brought action in the state court against the defendant, a foreign corporation, by service of summons and complaint, on the 20th day of May, 1889. Bylaw the answer was due Juno 9th. The defendant appeared to the action, and on the 3d day of June obtained from the plaintiff a stipulation extending the time to pioad until July 9th. On July (5th the defendant filed in the state court its answer, and also its bond and petition for the removal of the cause into the federal court, and moved for an order accordingly. The motion was denied by the state court, upon the ground that tho application was not timeN filed. The defendant now presents a certified copy of the record, and asks leave to docket tho cause in this court.
The present removal act requires, with respect to the time within which the right to removal is to be asserted, that the petition must be filed “at the time, or any time before the defendant is required by the laws of the state or the rule of the state court in which suit is brought to answer or plead to the declaration of the plaintiff.” 25 St. c. 8(56, § 3, p. 135. The question presented is whether an extension of time to plead enlarges the time to petition i'or removal of the cause. Tho history of legislation with respect to the removal of causes from state to federal courts throws light upon the intention of congress, and aids to properly construe the provision under consideration. By the judiciary act of 1789, (1 St. 79,) the application for removal must be made by the party “at the time of entering his appearance.” Under that act it is clear that the right must be exercised with the initial step in iho cause, or it was lost. Under acts of 1866 (14 St. 306,) and of 1867 (14 St. 558,) the right of removal could be exercised at any time before the trial or final hearing of the cause. These acts enlarged both the right and time of removal, and under them abuses sprung up. The right was frequently exercised to delay the cause, rather than to obtain its adjudication in a federal court. The act of 1875 (18 St. 470) sought
So, here, the statute provides a definite time, viz., the time designated by the law of the state to answer the declaration, or, when the law is silent, by the rule of the state court. In most of the states that time is fixed by statute; in some of the states, — notably in Tennessee and Indiana, — by rule of court. In that respect congress sought to conform to the usage in the several states. Possibly, under the variant practice, no more definite time could have been designated. By the law of Wisconsin (Rev. St. Wis. § 2648) the answer must be served within 20 days after service of the complaint. In my judgment, it" is no more competent to enlarge the time by stipulation of the parties or by order of the court- extending the time to answer than it was competent, under the act of 1875, by demurrer, continuance, or stipulation, to enlarge the time beyond the term at which the cause could have been first tried. This right of removal is not a floating right, adrift upon the uncertain sea of stipulations, demurrers, dilatory pleas, and proceedings; but is fixed and stable, measured, as to the time of its exercise, by the statute law of the state when that law speaks to the subject, or by the rule of the court where the time of pleading is so determined, in the absence of statute law. As to the state of Wisconsin, the act is to be read as providing that the petition for removal must be filed within 20 days after service of the complaint. Such construction effectuates the manifest intention of congress, insures certainty and uniformity in the proceeding, prevents abuses, and, in my judgment, conforms to the plain meaning of the language employed. Other construction tends to confusion and uncertainty. The time appointed would not be uniform in all actions in the same state, and could be indefinitely extended, limited only by the ingenuity of counsel in postponing a plea to the merits. In this state, where decisions upon demurrers may by direct appeal be reviewed in the court of last resort, an answer to the merits might readily be postponed for a year. The very evil sought to be remedied by congress would, by such construction, be perpetuated, not restricted. It is not to be
Upon this question there has been lack of uniformity in the federal courts. " In all the cases to which I am referred the decision was right, but in some, with deference be it said, not bottomed upon exact reasoning. In but few of them was the question directly involved. Some of tbe opinions contain expressions which might authorize the inference that the time might bo enlarged by order extending the time to answer. Su.ch declaration was unnecessary to the decision, and therefore not entitled to the weight given to a conclusion determinately reached upon careful consideration, and upon a question essential to the decision. In Simonson v. Jordon, 30 Fed. Rep. 721, the petition was filed after the expiration of the extended time for answering. The cause was rightly remanded. Judge Wallace asserts, however, that the petition would have been timely filed within the enlarged time for answering. The remark is obiter, and possibly an inadvertent expression. In Hurd v. Gere, 38 Fed. Rep. 537, the same learned jurist bold that tbe petition comes too late when filed within the enlarged time for answering obtained through an ex parte order made after expiration of the time designated by the law. I am unable to reconcile this ruling with the opinion expressed in the former case. Judge Wallace concedes that the ex parte order, although irregular, was not void. Until vacated, it was as effectual as if made upon notice. It had not been vacated, and was consequently operative to annul the default. The petition was therefore seasonably filed, if the time for such filing can be enlarged by stipulation or order. The cause was properly remanded, because of failure to prefer the petition within the time limited by statute to answer the declaration. In Dwyer v. Peshall, 32 Fed. Rep. 497, by oral agreement, the time to answer was extended indefinitely. Judge Lacombe, arguendo, refers approvingly to the statement in Simonson v. Jordon, that an extension of time to answer enlarges the time for removal, but holds an oral stipulation ineffectual, lie asserts that the act of 1887 materially shortened the time for removal allowed by tbe act of 1875, and should be “strictly construed against any one seeking to evade the additional Jim-