PELZER MANUF'a CO. tl. ST. PAUL FIRE & MARIlSE INS. CO.
185
16, 1875, in such actions, unless the matter in dispute should exceed the sum of $5,000, exclusive of costs; and that the United States are not entitled to a writ of error or appeal if the same remedy is afforded under simila.r circumstances to a private party. In passing upon this question, the court said, (page 39, 131 U. S., and page 658, 9 Sup. Ct. Rep.:) "By the act under which these suits were brought the district court was with the court of claims as to matters of which given concurrent that court had jurisdiction, · where the amount of the claim does not exceed one thousand dollars, ' and thE! same right of appeal was given to the plaintiff or the United 8tates as · now reserved in the statutes of the United States in that behalf made.' Section 707 of the Revised Statutes reads: · An appeal to the supreme court shall be allowed, on behalf of the United States, from all jUdgments of the court of claims adverse to the United States, and on behalf of the plaintiff in any case where the amount in controversy exceeds three thousand dollars, or where his claim. is forfeited to the United States by the judgment of said court, as provided in section one thousand and eighty-nine.' By section 708, such appeals must be taken within ninety days after the jUdgment is rendered; but this period is enlarged to six months by section 10 01 the act in question. Inasmuch as the object of tbe latter act was to enable the district and circuit courts to exercise concurrent jurisdiction with the court of claims in respect to suits against the United States, as therein provided, in our jUdgment the right of appeal reserved to the government · in the statutes of the United states in that behalf made,' before the enactment of this act, was the right of appeal reserved in the statutes relating to the court of claims, and as that right could be exercised by the United States in the instance of any judgment of the court of claims adverse to the United States, it follows that the same right can be exercised by the United States in any case of the prosecution of a claim in the district Or circuit courts of the United States under said act."
The motions to dismiss in those cases were overruled; and, for the same reason given by the court, the motion in this case must be granted, and the appeal is dis!p.issed. A like order will be entered by the clerk upon the motion to dismiss the writ of error· .PARDEE,
J., concurred.
PELZER MANUF'G
Co.
t1. ST. PAUL FIRE
&
MARINE INS.
SAME V. SAVANNAH ]!"'IRE
MARINE
INs. Co.
(Circuit Court, D. South CaroUna. November 2, 1889., FEDERAL COURTB-PRAOTICB-TIME TO ANsWER.
The period allowed the defendant to answer or demur by Code S. C. is Buspended by filing in the state court bond and petition for removal to the United States circuit court, and becomes current when the record is filed in that court; and, under the circuit court rules, (fourth circuit,) the defendant will be in time if heserve hla defense before the rule-day next thereafter.
In Equity.
Motion for leave to file answer.
186
FEDERAL REI>(jRT EIt,
vol. 40.
Smythe for plaintiff.' , JuUttA H. H&gward and J08. W. Barnwell, for defendants. 81MON'tON, J. The action in each of' these cases began in the circuit court or South Carolina for the cOunty of Greenville. "The summons in each was issued, and ,complaint filed, on 31st July, 1889. On 17th Augusttheteafter, a petition for removal into this court,with a proper bond; was filed by defendant; the ground for removal being diversity of citizenship,and the amount in controversy being over $2,000 principal. On 4th October, 1889, the first term .of the state circuit court next after filing the petition, an order was passed by that court, on motion of the attorney fordefendaIit, directing the record in each case to be sent here. The records were filed with the clerk of this court on the 18th of October, 1889. Thereupon: the plaintiff's attorney, no answer or demurrer having been filed, gave notice the rules-day next thereafter, 4th November,he the' clerk for judgment by default, nnder our rule 12. The ,defendant comes in with affidavit, and after notice, craving ioooch case "leave.to answer in this action, and for such other reliefas may he propel'." , When 11 proper petition and bond. are filed in the state court, the risdiction of tllis' cOurt is the rightful of the state court is at an end, an<ino further, proceedings can properly be had there, unless, in some form 1 its jnrisdictionisrestored. Railroad GJ. v. Mississippi,102U. t:;.136j In.mranceCo.v.Dunn, 19 Wall. 214; Railroad 00. v. Koontz,104U.S;14. When the c8.secomes here, this court takes it in the same oondition {twas when it left the state court. The removal does not vacate or change what has been done, but simply carries the suit to the circuit court for further proceedings. Duncan v. Gegan, 101 U; S. 812. It is necessary, hOwever, 'that a copy of the record from the state court be entered in this court, ioorder to enable it to proceed with the cause, although the jurisdiction does not depend on this entry. Fisk v.Rail,. road Co., 6 Blatchf. 362; Railroad GJ. v. Koontz, 104 U. S.15; Torrentv. Lumber Co., 37 Fed. Rep. 728. See Web8ter v. Crother8, 1 Dill. 301. In each of the present clitses, the summons, with the complaint, was served 31st July. The petition and bond were filed 17th August. Sixteen of the twenty days allowed under the, Code to the defendant to demur or answer had elapsed.· At this stage it: came into this court. But, before this court could proceed, the record should be filed here. This was done on October 18th, .atthe instance. ofthe defendants. See Mining Co. v. Bennett, 4 Sawy. 289. Thereupon the period for demurring or answering, suspended by the .I'emoval f again became current., Under our rules, the defendants, iOhey serve their defense before the rule-day next thereafter, rule-day in. November,-wiU be in time; Let the answers be filed 88 of to-day. . ... i