896
J'EDERALREPORTER
52.
tOIlet!' In.rsbrch 'of was/indow 'Ite.-:Kittg,ai1d'/JJbEf ,waS: also'Wc .:fa.ua,bfor .not,eignilling hta.,tp:roper (9) 'that'at'1lo:.titneWhen'tne bodsrwere ;within'QI qU8rtei:olfl dd probably upw,ardsof·a/quarteri:Jf a.. mile; was the mileijr green,'iligb t, of tbe,McOaldin Brothers. as nlOOnhR8 :ar "pOint; on the star,. board bow of the Ice King, as is apparent from' cotisillUng R' chartofthe channel of the river; and the omission oiany timaly':sigrW by the MeCaldin Brothers was alsQt;1l!,violatiqni G{r:the inspectora' rules'.': H" Considering that the McCaldin Brothers is chiefly to blame for this OGlli8ion, Lhav8 ,in d:etlmniningwliletherthe nonobservance ofthe inspectOrs' rules; ought, tt> beid,llemedapro'thna.te:cause of the collision'in the, present case. But, I find it impossialt> to· hold that-the givingQf thereqnire<l, by thei]jae Kihg ,WCJlild not probably have beenofany use; stillle8Bj' to say not p<>ssiblyliave been of use·. ' PM P6'nnBylV(inUt, J. 9 Wall.' 125, 136; The Dentz j 29 Fed. Rep. 1
"i
TT
It is clear frOiD the testimony that the pilot'ofithe, McCaldin Brothers M:ts;navigating"underamisapprehensi,on as 'w,the state of the tide; and that he was going over to"the east shore, ,conceiving the tide ,to be ebb, where,he says he would not have gone had he known the tide to be! flood. , A 'timely-whistle from ,the Ice King, whether of one blast, or of two blasts; would, have niade known her 'intention to the McCaHin Brothers,and would naturally have tended to correct her pilot's mistake. It. cannot ;be saidthatthernlesns to giving signals are uQtdesigned to 'correctgrt>ss mistakes,'or blunders. Theyar&iprescribed fOD ,the very; purpose 01 coming to a commonuh:of preventing mistakes, whethert slight or gross, i 'the Otmnecticut,103 iU.g.. 710, 71i31'Th.e Olaraand 'l:lu Reliance, 49 Fed. Rep; 765, 767; 768;'The' Td:B.Van ,Fed. Rep. l590; Tlw AmOs C. Barstow, Id.623. ,:Thecourse.ofthetwo boats was so neallly,headand hooddQ,at they ;cahnotbe exempted ifrom the operation Qf the rules. Evenl,the:pilot ,of,the Ice King estimateS that the dis-iancethey ''Would .have. passed and, clearedi ,each '-other, had, not the ,Mc0aldin .Brothers ,made her shear to, starboard;; as he alleges she 'did, only have"beett 'soroe, 75,to 100 feet.",·:IDor'some time, therefQre,they muatha"e been very nearly head and,'head 1 and the obli'gatiorl:to give was equally, obligatory oneacn.Ldo not"ftndthat any of the cases cited, b1!1heclaimants would excuse King's 'om'iBsicin of the signal. ":l.um obliged, therefore, to hold"hoth'vesselsre£i1ponsible, and to alrlow:·theMcCaldin Brothers' to recover one halfrher damages, not exceeding, however,itbestipolated value of the iItle King and her freight iniIirnitation of her liability, to which! find·the owners entitled, or ifrotherclahns appelit,her pro.rata ofsuch'vaJue.
BOCK mLANDRAT. BANK
v. J.
S.
LUMBER 00.
897
RoCK ISLAND NAT. BANk
tl.
J. S. KEATOR LUMBER Co. et al. 1>. October 31, 1892.)
(circuit Oourt N. D. ILlinois, S. &uro'UL OJ' CAU8ES-TnlB OJ' APPLIOATION.
Under Aot. Cong. Aug. 13,1888, 5 8; (25 St. at Large, Po 488,> which provides that a defendant maY' remove a oaUse at lobe time or beft-re be is required by the state law or rule of court to plead or answer, a petition for remoVal filed after the stattt. tory period tor answering has e;lqlired comes too late, even, though filed within the time allowad for answering by order of court, where such order 18 based on a stipulation entered into after expiration of the statutory periOd.. .
In Equity. On motion to remand. Motion granted. Sweenff]l Walker, for complainant. W. H. Moore, for the J. S. Keator Lumber Mtller &: Starr, for Thompson & Root. BLODGETT, District Judge. This cause was originally commenced in the circuit court of Rock Island county, in this state, and removed to this court on the petition of the defendants Thompson & Root. A motion is now made to remand the same upon two grounds: JiirBt, that the petition for removal was not filed in apt time; second, that no separable controversy is shown in the case which justifies the removal of the case in behalf of the defendants Thompson & Root. The record shows · that the defendants Thompson & Root were brought into the court as nonresidents by publication of notice under the laws of the state of TInnois in regard to chancery practice; by the published notice, these defendants were required to appear in the case on the first day of the then next September term of said court; which was on the 5th day of September, 1892; that said notice was published in time to require the defendants to make answer at the time mentioned; that no appearance was entered by said defendants, or answer or plea filed, at the time required by the notice, and under the statute, but that, on the 13th day of September, a stipulation in writing was made and filed in the cause between the complainant and these defendants, by which these defendants were given 10 days' further time in, which to plead in the cause; and the court, in pUrsuance of such stipulation, entered an order extending the time for the to plead 10 days from the date of such stipulation; and that, on the 22d day of September, the said defendants filed their petition ,arid bond for the removal of the cause to this court. Section 3 of the act of August 13, 1888, determining the jurisdiction of the circuit courts of the United States, and regulating the removal of cases from the state courts, (25 St. at Large, p. 433,) provides that a defendant desiring to remove . cause from a state court to the federl!-l court may do so "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 such suit is brought, to answer or, plead to Jhe declaration or complaint of the plaintiff." Section 16, c. 22,Rev. St. TIl., governing the practice in courts v.52F.no.11-57