DELBANCO 'D.
179
It is urged on the part of two of the defendants that, inasmuch as the summon$ and complaint were served on only one of the defendants, the time of the defendants n6tserved to plead or answer must be 'considered as com1l;leucing at the date. of the order of court sustaining the demurrers,and giving plaintiffs leave and time to file amended complaints. We think this point lmtenable. The defendants all appeared at the time of filing the demurrers to the first complaints, aud judgments were had.in their favor upon said demurrers. Such appearance was a waiver of service of summons, and necessarily of the intervening time between service of summons, had they been served, and the time at which they filed their demurrers. Apd further, the actions are not separable, as between the defendants, ·and they could not be removed a.s to two of the defendants only. They must be removed as to aU or none. It is further urged bY'defendants that these motions to remand are prematlire, at the present time, and cannot now be entertained or heard by the Clourt. It is contended that, as the act only requires the defendant to file a copy of the record of the case in this court ,(on the first day of its then next session, * * * and, said copy being entered as. aforesaid in said ·cii'cuit oourt, the cause shall then proceed in the same thanner as if it had been originally commenced in said circuit colUrt;" therefore the courtnanllot entertain these motions until the next term of court, to-wit, next November term or session. In support of this positionco\1nsel cite Railr:oadCo. v. Kwntz, 104 U.S. 5. We do not consider this case particularly applicable to the cases before us. The point here.. involved was not considered or discussed in that case, but r:ither the reverse, tha:powerof the circuit court to permit a copy of the record to be filed after the first day of the term when it should have been ,·filed. And thesupreme court held that, in a proper,calile, on cause shown, the circuit court might permit the record to be filed after the first day of the term at which it was due. But the opinion in that case does not intimate that the record may not be filed in the circuit court at any time after the petition ann bond are filed in the state court, and before the next term of the circuit court, by any party interested, other than the removing party, or that, being so filed, the circuit court would not have full jurisdiction of the case. Counsel also cite Railway 00. v.Lumber, 00" 36 Fed. Rep. 9. This case is closely analogous to the caseS before us, but we Ilrenot able to concur in the conclusions reached in thatcaEie. Indeed, we think the tendency of the· authorities cited and referred· to in that case ii'l to an opposite result.. It does not appear from that case, Il.sreported, whether or not there is any rule of court in the eighth circuit regulating the matter of procuring the record from the state court by any party other than the party seeking to remove it, and filing it in thecircuit'court. From the fact that no mention is made of any such rule of court, we· infer thaUhe court hl18not adopted any sucb ruie in referen<le'thereto, as prevails in this circuit. Rule 79 of this circuit pro\'ides : . proceedings bavebeen perfected in a court to remove from such cOurt to this to .any statute of t,he
180
FEDERAL REPORTER,
vol. 4.0·.
United States, either 'party may at any time thereafter, as ofconrse, file the transcript required by law this court, and serve written notice of such filing upon the adverse party or hil;! attorney; and upon filing in this court satisfactory evidence of the service of such notice the clerk shall enter the action upon his register, and thenceforth the provisions of rule 78 of this court shall be applicable thereto. and the same proceedings may be thereafter had as if the tr,anscript had been filed by the party removing the case at the time prescribed by law." Rule.78 provides in regard to amendments of pleadings, etc. Rule 79 was adopted in March, 1879. It was made under the authority of section 918, Rev. St., which provides: '''l'he several circuit and district courts may from time to time. and in any manner not inconsistent with any law of the United States, or with any rule prescribed by Lhe supreme court under tl1e preceding section,make rules and orders dh'ecting the ret.urn of writs and process, the filing of pleadings. the taking of rules, the entering and making up of judgment/Jby default, and other matters in vacation, and otherwise. regulate their own practice as may be or convenient for the advancement of justice and the prevention of delays in. proceedings." . '. '. Rule 79 was the outgrowth of the ca&e of Mining 00. v. Bennett, 4 Sawy. 289, and was intended to cover that and all simHar cases.where long <;Ielay might occur by reason of the neglect of the .removing party to file the record in this court. As said by the court in that case: "n is trae, as urged by defendant. that the statute makes no provision for filing the copy of the record before the first day of the next succeeding term, or by any other persQn than the party removing the, cause. But it is also true that there is nothing prohibiting the filing of the record at an earlier day, ,or by any party interested other than the one removing the The reasoning of the court in that case is applicable in the cases before us. The next term or session of this ,court begins November 4th. The petitions and bonds for removal were filed July 3d. Hence, if defendants' contention is correct and tenable, there must. he a delay of four months in these cases; and this merely for delay, for, as we have seen, upon examination of the records, the cases would have to be remanded whenever the court should take them up and consider them, fOUf or five months hence. But it is conceded that for some purposes the circuit court may and will as!lume jurisdiction'of a case before the record is filed by the removing party, and will issue such writs 'and make such orders as maybe necessary to preserve the rights of the parties; and thisJrom the apparent necessity of preserving those rights. That in such cases this court may and will issue or discharge ,writs: of attachment, solve injunctions, appoint receivers or discharge them, issue comnaissions to take testimony; in short, will exercise its highest authority and pow. ers, and virtually assume full jurisdiction of the case and parties; This; in effect, is the substance of the authorities cited in Railway Co. v. bumb81' Co. ,supra. But will or can a court properly exercisetheae high powers and functions without first inquiring and deterrniningwhether affecting the or not it has jurisdiction to make any (mlers in.. the rights of the parties? In the. cases cited in Railway 00. v. Lumb81' Co.,