700
J'EDERAL REPORTER I
vol. 43. et 01. "
SOWLESti;WITrERS
(Circuit
L
REMOVAL OJ' CAUSES-FEDERA.L
na,tlonal by authority the United States. &,l'ises under the laws . of the United States, within the ll1eailing of the removal act of 1888, (25 St. U. S·
A suit to recover property aequlred by the removing defendant,as t"6ceiver of a .'
s., SAlliE-Tum OP
.·..4 8 4 . ) · .
····<i,·f' . .
Said aot provides that the petltl(ln f(lrremoval shall be, file,d at or before the timE' the defendant 1s required to 'plead.' A rule of the chancery oonrtprovided that the 8ubpoona sh(l1l1d require defendant's on the first day of a stated term, and. that lie sh,ould answer witIJJn.oW days from the or the day fixed for entering appearance. A subprena required the defendant to· answer on the first day of the·April term, but theS\l:itW"lIfiot entered until tll,e last day of court. The next stated term began on second in SepW'll,'er, Held. that a petition for removal filed September 4th wasln apt tlme. '"
:In Equity. i[
011 motion to remand. Edward' A. Sowles, for complainant. Chester W. Witters, for defendants.
See 28 Fed. Rep. 121, 218.
WHEEI,ER, J. 'This suit wits brought in the court of chancery of the state, was removed into this court 60 petition of the defendant receiver, and has been heltTd on motion of the'oratrix to remand, because, as said, not arising·under.the constitution' or laws of the United States, and removed o'ut'oftime. 'l'h'ebill onitsfa:ce shows the suit to be brought to recover .property solely acquired by the removing defendant, as receiverof a national bank,under direction of the comptroller of the currency, by: force:o{ thelaw8 of the' United States, and that his defense must restrif jaflyhe has, upon authority given by' those Jaws. The words in the not 'of 1888 (25 St.' 434) on which this question arises are the same as thoseofthe act of 1875, (18 St. 470,) upon which Tennessee v;. Davi8,r100U. ,8.257, and Railtoad Co. v. Mis8i8sippi, 102 U. S. 135, were decided. ,Those decisions seem to: settle that when the acts complained ann a suit are done under a la wof the United States, or the defensemrishest· upon such a law; the suit arises under the laws of the UnitedStntes. ! . The a<lt. 'of 1888 provides for filing' the petition for removal in the '!state court,i)ill:fhe,timeor any time before the deferidant is required by the laws of thestftte,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 rules of the court of chancery of the state provide that every stated term shall be treated as continuing, though in recess, until the next stated term; that the subprena shall require the appearance of the defendant on the first day of a stated term, or the bill will be taken as confessed; and that the defendant shall answer withill'40 days from the return-day of the· process, or the day fixed for entering an appearance. Rules, 1, 9, 24. The sllbprena required the defendants to appear on the second Tuesday in April,-the first day of the April term. The petition was filed on the 4th day of September. The next stated
BRUSH ELECTR1C
CO. II.
BRUSH-SWAN ELECTRIC LIGHT
CO.
701
term began on the second Tuesday of September. Hthe suit had been entered on the first day of the April term, the ,petition would have been clearly too late. The petition, however, alleges that the suit was entered "out of time upon the last day of said court," and this is not contra· verted; The defendant could not enter an appearance in the suit until the suit itself was entered. The requirement to appear was in that suit. The mode of entering an appearance in that court is by writing the name of the defendant, if the defendant appears in person, or the name of the solicitor if the appearance is by solicitor, in the proper place upon the docket entry of the suit. If the suit was not there, the appearance would have no place. The requirement of the rule implies that the suit shall be entered before the defendant is defaulted. Under these circumstances, the earliest day on which the ,defendant was required to appear was the last day of the court, and perhaps hot then without new notice such as the court should require on permitting the entry then of the suit. The day of entering the suit is not shown otherwise than by the allegation quoted, and can be inferred only from the rule,. unless the fact that the court of chancery, on the filing of the petition and bond, ordered the remoyal of the suit, is to be taken as a finding that the filing of them was in time. The oratrix could not justly withhold entry of the suit, the time of the defendant to answer was at the same time and expiring., An enlargement by the court of the time to answer might, and doubtless would, not enlarge the time for removal; but this removal does not appear to be within enlarged time merely, but within the first and only requirement of the rules. Motion denied. '
BRUSH ELECTRIC Co.
'V.
BRUSH-SWAN ELECTRIC LIGHT Co.
(OfJrcuit Oourt, S. D. New York. August 22, 1890.) EQUITY
Where a defendant asks leave to file a cross-bill, and for an injunction against the complainant, leave to file the cross-bill maybe given without determining the right to the injunction.
,JnEquity. On for leave to file cross-bill. See 41 Fed. Rep. 163. Carter, Hughes &: Cravath, for complainant. G.B. &F. L. Orawford, for defendant. ,LAQ9MBE, Circuit Judge. When this· motion was decided upon the first, it was treated as an application for a stay or injunction, the practical effect, of which,jf gmnted, would be to suspend, if not to ,pnncel.,tl:\e·operatio.n of J\lqgeCoxE's.decree. 'l'hatsuch stay was sotlght oply to reliEjf for Wll,l;I a circumstance not suf-