222 F. 467 | D. Idaho | 1915
“Upon condition that the above-entitled action may be placed on the trial calendar for April, 1915, called on April 5, 1915, and set for trial on such day as the court may be able to try the same, although no answer-is filed, or note of issue filed, by said April 5, 1915, the time of defendant to answer herein is hereby extended to and including four days after the date of the order of this court decisive of said defendant’s motion herein for the appointment of a receiver, and the authorization of receiver’s certificates.”
At the foot of the order there is the following:
“As counsel for defendant, I hereby agree to the express conditions of the above order, and accept the extension of time above granted upon such conditions. McCready Sykes, Attorney for Defendant.”
Whenever any party entitled so to do desires to remove a suit from the state court to a federal court, “he may make and file a petition, duly verified, in such suit 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 * - v plaintiff, for the removal of such suit,” etc.
The contention of the defendant is that, by virtue of the stipulations extending its time to appear and plead, the time within which it had the right to petition for removal was extended to April 2d, and that the order of April 2d enlarging the time to answer correspondingly enlarged the time for removal.
Upon the general question of the efficacy of a stipulation or order extending the time for pleading in the state court, to enlarge the time for removal proceedings, great diversity of opinion is disclosed in the decided cases. There is an apparent want of harmony even in this circuit. See Tevis v. Palatine, etc. (C. C.) 149 Fed. 560 (decided by Judge Wolverton); Heller v. Ilwaco, etc. (C. C.) 178 Fed. 111 (decided by Judge Bean); Hansford v. Stone-Ordean, etc. (D. C.) 201 Fed. 186 (decided by Judge Bourquin); Adams v. Puget Sound, etc. (D. C.) 207 Fed. 205 (decided by Judge Neterer). Many cases both pro and con are cited in 34 Cyc. 1276. Illustrative of the view that the period for removal proceedings cannot thus be enlarged are Ruby Canyon Gold Mining Co. v. Hunter (C. C.) 60 Fed. 305, and Wayt v. Standard, etc. (C. C.) 189 Fed. 231.
If we assume that a stipulation for time to plead in the state court operates to extend the time to remove, the defendant’s time for such removal was thus extended only to and including the 2d day of April. If we further assume that a special order made by the state court granting further time to plead enlarges the time for removal, it is to he noted that the. order of April 2d was upon the condition, expressly assented to by the defendant, that the cause should be placed upon the trial calendar for April, and called on April 5th, and set for trial at some date thereafter to suit the court’s convenience. This was equivalent to a consent that the cause be tried upon its merits in the state court. It is suggested in the argument that it was known by the state court that the defendant did not intend 1» waive its right to remove; but there is nothing in the record to support that view, and the record facts must control. If there was any understanding that the defendant might at any time, notwithstandng its consent to a setting of the case for trial, remove the cause to the federal court, that understanding should in some way have been expressed in, or at least suggested by, the order; but the order and the consent thereto attached un
Let an order be entered remanding the cause to the state court.