BROWNING V. REED.
625
BROWNING
v.
REED.
(Oircuit Oourt,
n.
Indiana.
June 19,1889.)
REMOVAL OF CAUSEs-TIME OF ApPLICATION.
Under act Congo March 3. 1887, as corrected by act Aug. 13, 1888. requiring an application for removal from state to federal court to be made at or before the time the defendant "I> required by the laws of the state or rule of the state court in which the suit is brought to answer or plead," where, on the third day of the term. defendant is ruled to answer, and files a plea in abatement on the next day, which is overruled on demurrer on the sixth day, a petition for removal, not filed until the seventh day, is too late. even if the plea in abatement suspended the rule to answer, as such rule became operative on the overruling of the plea.
At Law. On motion to remand. Friedly &- ailes, for plaintiff. Dnnn &- Dunn and J. W. Bnskirk, for defendant. \VOODS, J. This case comes from the Lawrence circuit court, and the motion to remand is made upon the ground that the petition for removal was not presented in time. The record shows that the defE'lldant was duly served with process in the customary form, and on the return-day appeared specially, and moved the eOl1rt to set aside the summons and return. On the next day-being the third day of the term-the court overruled this motion, and ruled the defendant to answer. On the next day the defendant filed a plea in abatement, to which on the next day the plaintiff demurred, and on the next day this demurrer was sustained. This was on Saturday, the sixth day of the term; and on Monday, the seventh day, the petition for removal was presented. The rule to answer, as entered on the third day of the term, required an answer on the next day, and on that day the application for removal ought to have been presented, unless the filing of the plea in abatement operated to extend the time. or not a plea in abatement has such effect, it is not necessary in this case to decide. If so, it must be upon the theory that, in respect to the time when a removal can be had, the plea suspends the operation of the rule to answer; and, conceding, but not deciding, this to be so, nevertheless, when the plea was overruled on the sixth day of the term, the rule to answer became at once again operative, and, if a removal was desired, it should have been then applied for, and the delay until the next day of the term was, I think, fatal to the right. By the act of March 3, 1887, as corrected by the act of August 13, 1888, the application must be made at or before the time the defendant" is required by the laws of the state or rule of the state court in which the suit is brought to answer or plead to the declaration or complaint of the plaintiff." The conclusion reached seems to be supported by the decision of Judge BLODGETT in Kaitel v. Wylie, 38 Fed. Rep. 865. See, also, Dixon v. Telegraph Co., Id. 377, and Hurd v. Gere, Id. 537. For the statutes of Indiana in respect to the subject, reference is made to McKeen v. Ives, 35 Fed. Rep. 801. The motion is therefore sustained. v.39F.no.13-40
FEDERAL REPORTER, vol. 09. AUSTIN
v. GAGAN et al. August 5, 1889.)
(Circuit Court, N. D. California. 1.
REMOVAL OF CAUSES-CASE ARISING UNDER UNITED STATES STATUTE-PETITION.
In order to remove a cause from a state to a United States court, under the act of 1887, on the ground that it arises under a statute of the United States, the record must affirmatiyely show. from the facts alleged, that some disputed construction of the statute will arise for decision in the case.
2. 3.
SAME.
Where the contest is about the facts only, the law being undisputed, there can be no removal. SAME-TIME OF ApPLICATION-SUBSEQl:ENT EXTENSION OF Tum TO PLEAD.
The application for removal, under the act of 1887, must be made at or before the expiration of the time to answer. as prescribed by the statute or rules of court in force at the time of the service of the summons. Subsequent extensions of time to answer by special orders of the court. or by stipulations of the parties, cannot extend the time to apply for a removal under the statute. SAME-Tum TO FILE BOND.
4.
The bond required by the statute, as well as a petition, must be filed at or before the time for answering expires, to effect a removal. SAME-FILING NUNC PRO TUNC.
5.
The court cannot, by an order made after the time to answer has expired, directing the bond to be filed nunc pro tunc as of a day prior to such expiration of time, cut off the right of the plaintiff to remain in the state court, which has already become vested and fixed under the statute.
{Syllabus by Ute Court.}
On Motion to Remand. James G. Maguire, for the motion. F. 1. Wilson, contra.
Before SAWYER, Circuit Judge. SAWYER, J. One ground of the motion is, that the petition does not present a case, which appears from the facts stated, to arise under the laws of the United States. One party claims the land in dispute as a homestead, and the other that the land is mineral, and therefore, not subject to be entered as a homestead. But it does not appear from any facts stated, that there is any disputed construction of either statute un· del' which the respective parties claim. For anything that appears, both parties may agree as to the construction of the statutes, and the whole case turn upon a question of fact, as to whether the land is mineral land or not, or whether either party has performed the acts conceded to necessary to give the right claimed. Indeed I infer from the facts stated in the petition, that the contest will really be upon the facts, and not the law. In my judgment the record does not present a case for removal nnder the decision in Trajton v. Nougues, 4 Sawy. 178, which was followed by Justice FIELD in ()old- Washing Co. v. Keye6, whose ruling was affirmed in 96 U. S. 199. See, also, McFadden v. Robinson, 10 Sawy. 398, 22 Fed. :Rep. 10; Hambleton v. Duham, 10 Sawy.489; 22 Fed. Rep. 465; and Theurkaujv.lreland, 11 Sawy. 512,27 Fed. Rep. 769,-to the same effect. Under any other rule the circuit court would