VELIE
11; MANUFACTURERS' ACCIDE!\T INDEMNITY CO.
541
v.
MANUFACTURERS' ACCIDENT INDEMNITY CO. OF THE UNJ;l'ED STATES.
(Circuit Court,E. D. Wisconsin. December 18, 1889.) REMOVAL OF CAUSES-TIME OF ApPLICATION.
Under the removal act of 1888, (25 St. U. S. o. 866, 58, p. 435,> providing that the petition for removal must be filed "at the time or any time before !s required, by the laws of the state or the ruJe of the state court in WhICh SUIt IS broughtl to answer or plead to the declaration, " an extension of the time to file the answer Deyond the time expressly provided in the state statute does not extend the time to file a petition, for removal beyond th\lot time. l
At Law. On motion ro docket cause. Fairchild & Fairchild, for Webster & Wheeler, for plaintiff. JENKJNS, J. The plaintiff brought action in the state court against the defendant, a foreign corporation, by service of summons and complaint, 011 the 20th day of May. 1889. By law ,the answer was due June 9th. The defendant appeared to the action, and un the 3d day of June obtained from the plaintiff a stipulation extending the time to plead until July 9th. On July 6th the defendant filed in the state court its answer, and also its bond and petition for the removal of the cause into the federal court, and moved for an order accordingly. The nl0tion was denied by the state court, upon the ground that the application was not timely filed. The defendant now presents a certified· copy of the record, and asks leave to docket the cause in this court. The present removal act requires, with respect to the time within which the right to removal is to be asserted, that the petition mllst be filed "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 suit is brought 25 St. c. 866, to answer or plead to the decl!1ration of the § 3, p. 435. The question presented. is whether an extension of time to plead enlarges the time to petition for removal of the cause. The history of legislation with respect to the removal of causes from state to federal courts throws light upon the intention of congress, and aids to properly construe the provision under consideration. By the judiciary act of 1789, (1 St. 79,) the application for removal must be made by the party "at the time of entering his appearance." Under that lWt it is clear that the right must be exercised with the initial step in the cause, or it was lost. Under acts of 1866 (14 S1. 306,) and of 1867 (14 St. 558,) the right of removal could be exercised at any time before the trial or final hearing of the cause. These acts enlarged both the right and time of removal, and under them abuses sprung up. The right was frequently exercised to delay the cause, ra*er. than to obtain its adjudication in a federal court·. The act of 1875 (18 St. 470) sought lAs to what Is the proper time for tlling a petition tor removal of a cause, see Burck Y. Taylor, 39 Fed. Rep. 581. and note. '
v.40F.no.10-35
FEDERAL REPORTER,
vol. 40. ,';
Under that act the petition niust .be made and filed or at the term at cause could be first tried, and before the trial:thereof." By the acts of 1887 (24 St. 552) and of 1888, (25 St. 435,) the time was still further restricted to the thne designated by the law of, the state. or by rule of the state court to answer or plead to the declaration. This act is less stringent than the of 1789, and less liberal than the other statutes. Under the act of1875, it has' been 'ruled that the election must be made at the first the cause was triable. 'I'batwas declared to be term in, which, to the rules of procedure of the court, whether they be statut6tyor rules of the court's adoption, the cause as to :rleadwould stand for trial, if the parties had taken ing and other preparations. term at the ,case be ,first tried is to be ascertained by these rules, and not by the mll-nller ih Which the parties have complied with them, or have been excused for non-comby thecourt, or py among themselves." Oar, Co. v. Speck, 113 U. S.84, 86, 5 $u,P.Ct. Hep. 374. , So, here, tpe statute provi4es a definite time, viz., the time designated by the law of the state, to :answer the declaration, or, when the law is silent, by the'rule cif the state court. In most of the states that time is fixed by statute; iusome states,-notably in Tennessee and Indirule of court. ,that respect congress sought to conform to the usage iIi the several stateil." Possibly, under the variantpractice, no; more definite time could have been designated. By the law of WisC0I17, E!in (Rev. St. :Wis. § 2648) the, answer must be served 20 days after service of the complaint." Iri my judgment, it is no inore competent to enlarge the time by stipulation of the parties or by order of the extending the to' thari it was coinpetent, under the act, of 1875, by demurrer, continuance, or stipulation, to enlarge the titpe beyond the terIl1' at which the cause cO,uld have been first tried. This right of removal is floating right, adrift upon the uncertain sea of stipulations, demurrers"dilatory pleas, an4 proceedings; but is fixed and stable, measured" as to the time, of its exercise, by the statute l,aw of' the ,state when to the .91' by the rule of the court' where the, time of is so qetermihed,)n the, of law. As to the to be read as prothat the petition for iem?v'al must befileq witb,in 20 days after service of the coDlplaint.' $tich col'u,!truction effectuates the lllanifest in.' tenti()D of congress, and uniformity intheprocjleding" prevents abuses, and, in' my juqgment, .cOnforms to the plain meaning of the' language employed. ',,' Other construction'tends to confusion ,and ,. :The 'v0lllq, not be ,?ijifofrn. i? all' !lctions ],n thesame state, and could extended,hmlted only by in Dle'rits. 'In this. decisiqns uP9t1:<lePtlluer,sll1ay by direct be reviewed. in the court Of last resort;a:n answer to the merits might reaaily be post-' for a year. ,The e'{i,1sql;lght to be remedied by ,c<mgress would, such construction,' be perpetuated, not restricted. It is not to be
to correct those abuses by restricting the time.
a
VEI.IE
V.
AcctbENT INDEMNITY co.
was' said in 100 U. 8.473,' thft.t alllirty "may experiment on his case in the state court, and, if he expeoted;difficulties; stop the proceedings and take the' case to another' tribuna!;" It is a cardinal principle of construction that statutes should be interpreted to suppress the mischief and advance the remedy.Looking, then, to the dlear' design of congress to abate the abuses that had. arisen:uMer the acts of 1866 and 1867, and to further restrict the thrie allowed by the act of 1875, it 'is apparimt tha:t'congress intended that the should be exercised at the earliest period possible. That pe. riodwasdesignated to be at or before the time prescribed by law for an.;; swering; not the time when the cause, by reason of dilatory proceedings, mighfberipe for an answer; not the tinl'e enlarged by stipulation of the parties or by order of the court, but the determinate time specified in the statute or in the rule of court.' The statute orthe general rule of the coultspeaks that titne, not the order or stipulllition made in ticular case. Upon this question,there has been lack of uniformity in the federal courts. '; In all the cases to which I am referred the decision was righi, but in'Bome, with deference be it said, not bottomed upon exact inK. .In but few of them was the question directly involved. Some !of the opinions contain expressions which might authorize the inference that the time might be enlarged by order extending the time to answer. Such declaration was unnecessary to the decision, and therefore not entitled to the weight given to a conclusion determinately reached upon carefulioonsideration, and upon a question essential to the decision. In Simomon v. Jordon, 30 }l'ed. Rep. 721 ,the petition was filed after the expiration :ortha extended time for answering. The cause was rightly remanded. Judge WALLACE asserts, however, that the petition would have been timely filed within the enlarged time for answering. The remark is obiter, and possibly an inadvertent expression. In Hurd v. Gere, 38 Fed. Rep. 537, the same learned jurist held that the petition comes obtained too late when filed within the enlarged time for expiration of the time designated through an ex parte order made by the law. I am unable to reconcile this ruling with the opinion expressed in the former case. .Judge WALT,ACE concedes that the ex parte order, although irregular, Was not void. Until vacated, it was as effectual as if made upon notice. It had not been vacated, and was consequentlyoperative to annul the default. The petition ;was therefore sea;. sonably filed, if the time for suph filing can be enlarged by stipulation or order. The cause was properly remanded, because of failure to prefer the petition within the time limited by statute to answer the declara" tion. In Dumf:r' v. PeshaU, 32 Rep. 497, by oral agreement,the time to answer was extended indennitely. Judge LACOMBE, arguimdo, refers approvingly to the statement in Simonson v. Jordon, that an extension. of time to answer enlarges the tiIne for removal, but holds an oral stipulation ineffectual. He asserts that the act of 1887 materially shortened the time for removal allowed by the act of 1875, and should be theadditionl1l lim"strictly construed against ahY'o:tie seeking
548
J'EPERAL REPORTER,
vol. 40.
itation, ",hloh it puts the right of removal. Such construction, I venture to observe, would be wholly defeated, if the obiter suggestion in Simon8on/v. Jcrrdon wereaQcepted as the correct interpretation of the statute. The cases of McKee:n v. [ves, 35 Fed. Rep. 801, and Lockhart v. Railroad 00.,88 Fed Rep. 274, are not in point. These cases arose in Indiana and Tennessee, respectively, where the time for pleading is regulated by rule of court. In each case it was held that. the petition was filed the time for pleading allowed by the rule of court. In v. Southern Pac. Co., 36 Fed. Rep. 279, the cause was ptoperly remanded, the petition being filed after expiration of the time for answeriqg. Judge, S4BINholds to the necessity of a strict compliance with the statute, which he says "was intended to compel parties to decide in limine in what court they wish the trial of the case to be had, and to make them abide by such decision." Any inference sought to be drawn from certain expressions in the opinion that the time for removal might be enlarged by extension of the time for answering is nullified by the decision in Delbanco v. Singletary, ante, 177, in which Judge SABIN explicitly holds that the time cannot be enlarged by order or stipulation of any kind. In Kaitel v. Wylie, 38 Fed. Rep. 865, the cause was remanded. The petition was held too late, although filed before answer was due to an amended declaration. J BJ.ODGETT expressly declares the statute to be imperative that the application for removal must be made when the plea is due, and that it comes too late when made after the time to plead designated by law or by rule ofcourt. The cases of Dixon v. Telegraph.Co., 38.Fed. Rep. 377, and Austin v. Gagan, 39 Fed. Rep. 626,-decisions by Judge sustain the conclusion which I have reached upon the proper construction of the statute, and, as I think, demonstrate its correctness. The motion is overruled.
KmBEliLY
fl.
ARMS et
114:.
Co'U'I't,N. D. OMo, E. D. November 99, 1889.;
L
EQUITY-BILL OJ' REVIEW-PENDING ApPEAL TO SUPREME COURT.
The circuit colirt cannot entertain a:bill of review to vacate a decree, from which the petitioners ha.ve alld been allowed, an appeal to the suprllme court, though they·aver that thlly QO Dot intend to P!irfect their appllal in the supreme court. .,
.. BAME-DECREE ENTERED IN PURSUANCE OJ' MAND.lTE.
..
Where the circuit court has, under and in pursuance of a mandate from the supreme court. entered a decree, it capnot entertain a bill to review such decree, either , for errors of law apparent o:rfol'newly-discovered evidence,without leave first had from the supreme court. . A bill of review cannot be or conclusions from the evidence. EVIDENCE.
.. Sum-ERRONEOUS
to correct supposed erroneous deductions
"BAME-FAILURB TO AVER PBRPORoMANCE.
The proposed bill must ,aver performance of, or inabUity to perform. the decree BOught to be reviewed. '