36 F. 279 | U.S. Circuit Court for the District of Nevada | 1888
The plaintiff in this action is a citizen and resident of the state of Nevada. The defendant is a corporation organized under the laws of the state of Kentucky, and is the lessee of the Central Pacific Rail
“That whenever any party entitled to remove any suit mentioned in the next preceding section, except in such cases as are provided for in the last clause of said section, may desire to remove such suit from a state court to the circuit court of the United States, he may make and file a petition in such state court 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 such suit is brought, to answer or plead to the declaration or complaint of the plaintiff, for the removal of such suit into the circuit court to be held in the district where such suit is pending; and shall make and file therewith a bond,” etc.
In this case, as we have seen, the state statute required the defendant to plead to the complaint on or before May 1, 1888. It is true that on that day the defendant specially appeared in the state court, and moved to set aside the service of the summons, But this, in itself, in nowise extended defendant’s time to answer or plead to the complaint, without an order or rule of court extending such time. The record does not show that any such rule or order was asked or obtained, nor is it sug
We do not, however, consider this motion as a plea. It was simply a motion. It might have been made and heard in the state court, or in this court, just as defendant may have preferred. It was preferred that it be heard in the state court, and the petition for removal was not filed until 30 days after the date of motion, and no extension of time to plead was sought or obtained, and that time expired May 1st, unless extended by order of court, or by stipulation of parties. The object of this provision of section 3 is obvious. It was intended to compel parties to de-cido, in limine, in what court they wish the trial of the case to be had, and to make them abide by such decision. It would seem unnecessary to review at any length the rulings of the courts, supremo or circuit, upon the removal of causes either under the act of 1875 or that of 1887. They are uniform in holding parties to a strict compliance with the terms of the statutes. The jurisdiction of the circuit court is special, and it must clearly appear in all cases, affirmatively; not presumptively. The record in this ease falls far short of this. It is not clear how the answer came to be filed May 31st, while the court was still considering the motion to quash the service of the summons; nor is it explained in the arguments submitted. The record should show affirmatively that it was filed within the statutory time.
We have been strongly urged by defendant’s counsel to consider, upon its merits, this motion, made in the state court, to quash the service of the summons in this action; and a large part of their brief is devoted to that subject, — the sufficiency of the service upon the agent Higgins. We cannot consider this matter at all upon this motion to remand. The ■motion to quash the service of summons was never before us. It was argued and submitted in the state court. And its decision mow is wholly immaterial, for defendant has voluntarily appeared in the case, without reserve, and filed its general answer to all of the issues tendered by the •complaint. This waives any irregularity of service of summons, if any there was, and the motion to quash the service has now no significance. The motion to remand the case to the state court must be granted, and it is so ordered, with costs.