FEDERA;L
v\>1. 45..
'i
;"
"Nor shall any circuit or district court have cognizance of any suit except upon foteign ,I:>ills of exchanKe,tp. ,recover the contents o( aI;ly promissory .' note or otller chose in action in faV'or of any assignee." But this suit is brought to perfect the record title to the stock, and not to recover the contents Of the stocR: in the sense of that word in these statutes. The suit is not upon the shares of stock to recover dividends which be, their <lontents, but is for the shares .of stock to perfect the right to the dividends as they may accrue, and the right to sue for· them in whatever may be the proper jurisdiction when theyhave accrued. Deshlerv. Dodge, 16 How. 622; Corbin v. County of Black Hawk, 105 U. S. 659. The dictiohkeptaway from these a.ppears to be that.of enforcing chases in action in favor of. assignees to recover what they will bring. The <lases cited in 'b,ehalf of this motion, Where jurisdictiqIi has been denied, were all brought for that purpose., .Shoecrajt v. Bloxham, 124 U. S; ,7,30, 8 Sup.' Ct. Rep. 686; Corbinv. County of BlackHawk, 105 U. 8.6'59; Bradley v. Rhines, 8 Wall. 393; Coffee v. Bank, 13 How. 183; Mollan v. Torrance, 9 Wheat. 537; Turnerv. Bank, 4 Dall. 8. An action in favor of an indorsee of a promissory note against his immediate indorser accrues to him, and he C'anrnaintain:it in. the courts of the United States, notwithstanding this statute. Althotighhe is an assignee of the note, he is not an assignee of this cause of action. Mollan v. Torrance, 9 '\Vheat. 537; Coffee v. Bank, 183. Jurisdiction choses in a()tion which hlwe been does to be prohi});-: . ited unless the cause of action hasl?,een assigned,and is for the contents of the cholle.. That is not The .refusal to the stOck was D;lade to, the orator, and. that furnishes the gronnd of this ,bill. The contents of the stpckare not here sought to Motion Jenied. ' ' . J: .
",:'SKAGIT CUMBERLAND
COAL Co.
"
(C-£rCUitOoort, D.lV'aaMngton. :March 18,1891.) hDBRAL
The voluntary appearance of ,defendant, and demurrer in a state court, before , expiration of the time within Which he was required topiead, in no way limits his right to file a petition and bond for. removal .the cause to the federal oourt at any time bef.ore expiration of such time. , ,Actpollg. Marcb 81 1887, provides that hE! may file tbe petition for removal "at the time, or at,any time before" defendant is " "required," by law or rule ,of court, to answer or plead. : . ,'"
o:r CAUBlI:-TDIlB:rOR RBMOVAL.
3, 1887, (24 St. 554,) relating to the remoYalof from the state tp' the providffi:that "whenever ,any: ,entitled to remoyeany >Ii. * * may:;desire to remove such sqit from a state court·tp the ,cirGPit;cQurtof tla.e United 8tates,he may mltke and file apetitioninsuphsuit' in such state court, at the time or at any time defendqnt iJl required, by the laws of the or
CONNER V.e-SKAGIT CUMBE!RnANDCOAL CO.
803
the rule of the state coutt)tt which such snit is brought, to answer or plead to the declarationot'cOIpplaint. * ,.' * " . Li11dsay« King and Moore &:' Turner, foiplaiptiff. Jo!tn.:r. Ostrander, for defendant. IIANFonn/J. The plaintiff has moved to remand this case to the court in which it was commenced, on thegr,ound the petition bond fot removal to tQiscoutt.'were not filed until the right to had beel1 lost by expiratiOhof the time Whatever the factsmai' be as to service ofthe jurisdictional process upon the defendant,' the proof of setyice contained in the record is, Ullsatisfactory, and that it would be unsafe to hold such proof,ti> be sufficient. I s1}a11 therefore decide;the issues presented by the motion, assuming it to be a fact that the summons has 'not been served upon the defendant. Ten days prior to filing the petition and 'bond" for removal the defend': ant entered a voluntary appearance in ·the state court, by 'filing a general demurrer, and the plaintiff contends that with the filing of said demurrer the time.allowed by law and the rules of the state court for answering expired, and, that being the time limited for filing a petition for removal, the right to remove expired simultaneously. I think, however, that by the act congress intended to and did prescribe a general rule by' which to measure the time within which a party having a right to remove a cause may claim such right; and while it is true, as held in cases . cited by counsel for the plaintiff, that neither the parties nor the court can, by any special rule or stipulation enlarging thetime for answering in a particular also enlarge or the time for making application to remove a cause, it is equally true that by no act of the parties or special rule of court in a particular case can the time for filing a petition to .remove be abridged. I do not mean to say that the right to remove cannot be waived, but, so long as the right remains, the limit of tim(f within which it may be ,exercised is not subject to any change. In tho of GaV'inv·. Vance, 33 Fed. Rep. 84, this question was passed upon, and the same cOQ;clusion was reached by Judge HAMMOND. In his opin, ion on page 92heaays: "Furthermore, I am of the opinion that the filing of the defendant's answel' in no way affects his right of removal by imposing a11y limitation of time upon it,. under this act of congress. The original judiciary act of 178\:1 did requirE" that the defendant proposing to remove a case should tile bis petition ·at thetime of entering his appearance in such court,' and' under that act the right of removal was gone after any plea or answer was filed. .Act 1789. c. 20, 12; 1 St. 79. But this liet uses entirely different language. Itdoes not at aU say that the petition IIhall be filed the first thing that is done on appear· ance. '1'he conduct of the defendant is not referred to in defining the limitation of time, nor. is any act of his designated as fixing .the terminal point. The laws of the state and the ruleS of thecotirt time by fllting a period when his right to answer or plead terminates. To illustrate, it is a familiar law and rule of court or practice in cases at law that the plaintiff has thlil first three,days of the term to file bis declaration, and the dt'fendallt tW(l days thereafter to plead.: etc..' Now. often the plaintiff files his declaration before the term commences, and the defendant pleads immediately, or it -'« ,,1'
804
I'EDERAL REPORTER,
vol. 45.
done on the first day; and, surely, suc.h a premature and voluntary action cannot be said to close the right of removal under this act of congress, but expiration of the two days allowed the defendant to plead would close it, perhaps whether he actually did plead or did not." The opinion in the case of Lockhart v. Railroad 00.,38 Fed. Rep. 274, cited by counsel for the plaintiff,.was also written by Judge HAMMOND, and he therein refers to the case of Gavin v. Vance, and plainly adheres to his views therein expressed1)y distinguishing it from the case then under consideration. This will be made apparent by the following extracts from the latter opinion: . . .. This court held in (Javin v. Vance, 88 Fed. Rep. 92·. that the filing of an anSwer prematurely-that. is', before the time specifically fixed by the statutes or rule of court-did not terminate the right of remo'val, and that a removal petition filed before the time aHowed for pleading had expired was in time. ... ... ... In (Javinv. Vance, 8upra, the answer that was filed. and which was held not to terminate therigbt of removal, was filed before the time which was fixed by a day certam ,tj:> plead, Which is not the case here." The appearance entered in case brought the defendant for the first time within the jurisdiction of the. court, and it was· entitled, by law and the rules of the court, to at least 20 days thereafter within which to answer or plead. As the petition and bond were filed within that time, there is no ground for this motion to remand.
STATE ex
ret TIl,.LMAN, Governo'r, et al. v. COQSAW MIN. Co,. ji
{CirCUit Oourt, D. Sooth OaroZina. April 21, 1891.}
B.
The'petition ·for removal of a cause from a state to the federal court is part of the record·. and will be considered by the federal court in determining its jurisdiction. SAME.
FORREMOVAt-REcORD.
8.
When the petition for removal totner;federal court and the bond are:flled in t,he state court, the jurisdiction of the latter ceases, and of the former imlllediarely at.taches. , .. Where the judge of the atate court in vacation passes upon the petition for remo.val and bond, courtesy does not require the federal court to withhold action. . ..
.
l
'
,-. SA1IlE-COURil'ESY TO STATE CoURT.
Ii.
SAME-COMITY.
The question of comity between the federal and state courts does not arise on removal of a cause. . ,
In·Equity. Y. J. Pope, Atty. plaintiffs.
Mitchellc!& .Smith, and George S. Mower,
fOJ:·