DWYER
'I).
PESHALL.
497
(Oircuit Gourt, 8. D.New York. September 23, 1887.) 1. REMOVAL OF CAusEs-APPLICATION-AcT OF MARCH 3, 1887. Under the New York Code of Procedure the defendant must serve his an· swer by the twentieth day after service of the complaint, unless the time is extended by order of court or by written stipulation. Held, that an oral agreement between the parties to the effect that the suit, which was only brought as a stalking-horse to beguile third persons, was not to be pushed. and that no answer would be required. was not such an extension as was provided for by either the laws of the state or the rules of the state court, and that a peti· . tion for removal filed after the 20 days were up came too late; the amenda· tory removal act of March 3, 1887, requiring such petition to be filed" at the . time or any time before the defendant is required, by the laws of the state or thEl rule of the state court in which such suit is brought, to answer or plead." 2. SAME-AcT OF MARCH 3, 1887-lNTERPRETATION. The intention of the amendatory removal act of March 8, 1887, to restrict removals from state to federal courts, is so clear that it should be strictly con· strued against any one seeking to evade the additional requirements which it puts upon tbe right of removal.
On Motion to Remand. KeUy,'l'ucke:r Henderson, for Dwyer. C. Fine, for Peshall. LACOMBE, J. This action was begun in the state court, by service of a summons and complaint, on February 19,1887. The defendant was, by the Code of Civil Procedure, required to answer the complaint on Match 12th. No answer was served, but on August 12th defendant filed his petition for removal. The recent amendment (1887) to the removal act requiJes the defendant to file his petition "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." The New York Code of Pro.cedure requires a defendant to serve his answer by the twentieth day after service of the complaint. That time may be extended under the Code and the rules in two ways,-either by order of the court or by written stipulation. Such an extension would no doubt enlarge the time within which a petition for removal maybe filed, (Simonson v.Jordon,30 Fed. Rep. 721,) but in this case there is nei}her order of court nor written stipulation. Defendant relies upon an alleged oral agreement between thepartiies, entered into before the action was brought, that "it should never be prosecuted to trial or judgment; that no default should be taken therein; that the time to answer should be indefinitely postponed, and that no answer should be required,-the action having been commenced merely for the purpose of facilitating a successful termination of negotiations for the sale of certain terminal railroad interests in Jersey City; and· to be discontinued when such result was consummated, or when it was apparent that the commencement of the action did not hasten such negotiations." In other words"the alleged agreement contemplated us· v.32F.no.8-32
498
:E'E])ERAL REPORTER.
ing the process of the supreme court of the state as a stalking-horse to beguile third persons for the 'benefit of the parties thereto. Whether or not persons making such an agreement are. guilty of contempt of court may be left· to the determination of the tribunal whose process has been thus abused. It is J;lot even necessary to pass upon the .ques,l'io,n whether the alleged a,greement is legal and binding on the parties. . ,The utmost that could be' claimed for it is that it may afford good for obtaining an extension of time to a:nswer; itisnotinitself ,suchan extension as is provided for either by the laws. of 'the state, or :the rUles of the state court, and therefore not within the letter ofthe act of 1887 I above quoted. amendments of 1887 were plainly meant to restrict removals from state to. federal courts. The value of the matter in dispute is increased from.SOO (including interest) to $2,000, (exRemovalcaIi be had only by the defendant, instead of ,by as .The time with,inwhich such removal .shall be, had is materially shortened. The intention of the act is so clear -that it shbuldbe strictly cohStrued against anyone seeking to evade the 3dditionallimitations which it puts upon the right of removal. Defendant further contends that plaintiff is, by the alleged oral agreement above quoted, estopped from moving to remand the cause.. It is unnecessary to discuss that point. This court is not, estopped from remanding a cause not properly before it, and will be astute, on its own motion, to decline the consideration of cases which under the federal -statutes been properIyreIegated to: its jurisdiction.
MC01tE
'and another
t1.
TOWN CotJNCn.
OF EDGEFIELD. '
(OirlJuit. UOU1·t.IJ.. South
August, 1887.)
1.
COURTS-:'FE!:bERAL JURISDICTION..:..:AMO'UNT· IN DISPUTE.
Under tlie alit of congress (March 4. 1887) the circuit 'Court of the United States ijas ,l1ot jurisdiction in a controversy betw,een citizens of different states, if the sum or value of the matter in dispute does not exceed $2,000. exclUding from the .computation any interest which may 'have accl'ued'up to the date of suit. ' In an application .for a mandamU$ for the levy of a ta; to pay a judgment, it is competent to show that the judl\'ment was obtained IJoram iumjudiIJe. ' ,
"2. 'S.
MANDAMUS-TAX LEVy-IMPEACH¥.lj::t\T ,OF JUDGMENT.
A judgment can be impeached collaterally if the court rendeiiog it was jurisdiction.1 . . wholly {Syllabu8 by the.
JUDGMENT-COLLATERAL ATTACK.
. Rule to Show Cause why a ntandalnus should notissue to levy a tax ,'. for the paymetlt'of a judgment. IThe want of'jilrlsdiction is a matter thannay always be set' np against a judgm'ent when sought to be enforced, or where allY benefit is claimed Under it. Grinuuett v. S. W. Rep. 707, and note; Fahey v. Mottu. (Md.) 10 At!. Rep. 68; .Jasper Co. v; Mickey, (Mo.) 4 S. W. Rep. 424; Spoors v. Cowen, (OhiO,') 9 N. E. Rel>.132.