1 S.D. 455 | S.D. | 1891
This action was commenced in the district court of the fifth judicial district in and for the county of Brookings, in the Territory of Dakota, on the 22d day of January, 1889. The defendant answered said complaint on the 22d day of August following; to which answer the plaintiff duly served a reply. The case was put upon the calendar by notice of trial, by both parties, in the circuit court of said Brookings county, to stand for trial at the regular term, commencing on the 11th day of March, 1890. When the case was called, defendant made application for a continuance, which was denied; but defendant was given until the 19th day of March to prepare for trial. On that day, the defendant presented its petition and bond for a removal of the cause into the United States circuit court for the eighth judicial circuit, which application was denied. From the order denying the application, this appeal is taken.
The application is based upon the ground of diverse citizenship. It is admitted that Ormiston C. Wing, the plaintiff, was, when this suit was commenced, a citizen and resident of Dakota territory, and continued to be such down to the time of its division, and the admission of the southern half into the union, as South Dakota, and was such at the time the application was made; that the defendant was, when the suit was brought, and still is, a citizen and resident of the State of Illinois; and that the matter in dispute exceeds the sum of $2,000. These admitted facts show that, had South Dakota been a state at the time the action was commenced, the defendant would, upon compliance with the removal act of congress, approved March 3, 1887, have been entitled to have had it transferred. The petition of the defendant does not show whether the application is made under the act of congress, providing for the removal of causes, or under Section 23 of what is com
The only pleading on the part of defendant is either a demurrer or answer, and the demurrer, like the answer, must be served within thirty daj.s. Section 4908, Id. The court may, in its discretion, allow an answer or reply to be made, or other act to be done, after the time limited by this Code. Section 4939, Id. Thirty days from the service of the summons is the limit the defendant has for answering the complaint, or filing a demurrer to it, except by the discretion of the court. In this case the action was commenced January 22, 1889. The defendant answered August 22, 1889, long after the thirty days had expired; but, in the absence of any showing to the contrary, it is to be presumed it was done in obedience to the direction of the court. The application for removal was made March 11, 1890, over six months after the answer was filed, and after the term of court had adjourned. The act of congress providing for the removal of causes from state to federal courts was enacted for the benefit of litigants of diverse citizenship in the states already admitted into the Union, and was not intended to be operative in actions instituted within the limits of the territories of the United States, as the territorial courts were, in fact, federal in their character. At the time the case at bar was commenced, Dakota was a territory. No tribunals for the
Parties have a right to continue the case in the state court, or to transfer it to the United States courts. When the right exists, the party’s election must determine where the case shall be tried, and, when once, exercised, he has exhausted his right. If no act has been done that can be construed into the exercise of this right, the party remaining passive, inactive, and silent, it may well be said he has not made his choice; but, as soon as any active steps have been taken, any acts performed, that show presumptively that he has made an election to remain in the state court, this action cannot be withdrawn or rescinded. The jurisdiction of the state court becomes complete, and no transfer will take place.