PEOPLE'S BANK t1. AETNA INS.· CO.
161
FEO£LE'S BANK OF GRJiJENYILLE v. AETNA INS. CO.. , ,
.
(Circuit Court, D. SOlj.ijl Carolina. 1.
December· 7, 1892.)
REMOVAL OF CAUSES-PETITION-TIME 01' FILING-STATE PRACTICE-PLEADING.
Under Code Civil Proc.S. C. §§ 164,195,405, and by rule 14 of the state circuit court, a defendant must demur or answer a complaint within 20 days after the service thereof, unless, such time has been extended by an order of court or judge, or by an agreement of plaintiff, reduced to the form of an order by consent entered, or by a writ1Iig signed by plaintiff' or his attorneY; and a petition and bond for removal to a federal court are in time if filed within the time thus extended. '
2.
Where the bond filed with a petition for the removal of a cause to a federal court is executed by two responsible persons, and the condition .' thereof is complied with, the statute requiring that "a bond, with good and su1ficient surety," m'.1st be made and, tiled by the party ,desiring removal is substantially fulfilled, although such bond is not slgned by the party seeking removal.
SAME-BoND--SUFfICIENCY..
At Law. Action by the People's Bank of Greenville, S. C., against the Aetna Insurance Company, on a money demand. The cause was removed from the state court of common pleas, and is now heard on motion to remand. Denied. G. G. Wells, for the motion. J. H. Heyward, opposed. SIMONTON, District Judge. This is a motion to remand. The action began in the court of common pleas for Greenville S.C., by summons and complaint, on a money demand. The sum· mons and complaint were served on the defendant on September 17, 1892. On the 4th day of October, 1892, 18 days ·after service, the plaintiff's attorney agreed with the defendant's attorney, in writing, signed by them, to extend the time to answer until 23d of October. On the 20th of October the defendant entered a general demurrer to the complaint, and on the same day the petition for removal, with bond, was filed in the state court The motion to remand is upon the ground that the petition for removal was not filed "before the defendant was required by the laws of the state, or the rule of the state court, to answer the complaint of the plaintiff." The question, then, is, within what time is thE;l defendant required by the laws of the state of South or by the rule of the state court, to answer a complaint? The answer to this question cannot be found in decisions of courts sitting in other states. The act of congress prescribes but one rule, the laws of the state in Which the suit is brought, or the rule of the state court. We must find the solution of the question in the laws and the rule of the court of South Carolina. We can find it nowhere else. The Code of Procedure of South Carolina (section 164) provides: ."'J;he only pleading on the part of the defendant Is either a demurrer or an 8:b.Swer. It must be served within twenty days after the service of a copy ot the cOnlplaint."
v.53F.no.2-11
,iI'EDERALREPCU\TB8,' voL
liS. ",
just, allow or reply to be,mal,le, or other act to be done, after the time liD;llted 'by 'thls' OOde 'of 'ot', 'by 'l!:n order,' e:bllirge silch time."
"The cotUt'
This rule is not inflexible. Section 195 of the same Code provides: Iiiliy likewise" In Its<llilCsretlon, or blion "su.ch,1Jehns .as may be
'SO, alSo, seetion 4'05f"" '! !. "I
"
i
Reading these SectiODSas in pari materia together, it appears that, under'theustl:ttute law of SO,nth Oarolina,a defendant is required to answer or demur to the cbmplamt\tithin 20 'day-safter 'service of a_, «wpy th,er.e9,!,.upop , enlar:ged by the court or lHuoge ther.eQl., , In this case no such order, of court- 'or io1!"e,·'judge is a \Vrltten agreement to p,laintiff. Rule'14 "No private agreement or consent between the parties or their attorneys In respect to'fue'pI'OOeedlngii{lrl)a caUSe shall be' unless the SR!Ue fIll1all have: been .. tQ ,tl;l.e .torntliOf an, Qrdwo: by . ll:nd entered, or unless the l,n ,yvrltplg.e)Jbseribed plI,rty against Wl).om the sanie Slllill be alleged, or hiS attodley or,counsel. . ._, I ' · _, ('" ..... ' .. ,
"The ttme Wltllin whiCh :ani"proCi:ledlJ1gln an act111n1 ttlustbehad after its c6mmencemEmt,' (except the'tUne within, which an appeal must. be taken, may be enlarglld. r1'1pon ra.tli4avit _wing grounds therefor by a judge of the court." f, lJ 1 ":n 1U;' ", "' :.,' , ;
party against whom the same shall be alleged; or-his attorney or counsel," has the same force and effect as' t'f 'the agreement had ''been reduced to the form of an order, by consent, and entered," and thitt it is 9,' substitute therefur. "If,thenl we inquire, ''When mnsta paHiy·defendant demur or answer to.a complaint?" the an, swer .must ''Within. 20 . days after the. semce of a copy· thereof upon him,unless his time has been enlarged by an order of the court or of a judge thereof, or by an agreement of the plaintiff, reduced to the form of an order byiconsent entered, or by 8;writing,i:lubscribed by the or by 'bis·attorney··or counse}/' As is said by the supremeeourt in Railroad Co. v.Daughtry, 138 U. S, 298, 11 Sup. C1l. Rep. 306; "the application to remove must be made when the plea is due," u::nafrected inaction on the part of the plaintiff. And, if· we inquire when the demurrer or answer in. this case was due, we find that the parties, acting under the'authority of the, statute and rule of court in South! Carolina, and· pursuing, one of the methods therein.pointed out, p.a.'Ve, agreed that the deIUUJ;,:rer or answer is Dot due until the 22ddayof October, 1892, two days after the date of the flllilg of tbispetition. ThecoU:llsel for tliedefendant, resisting the motion to remand, presents an original ,and :striking point. COJaSwuing the statute as using the w.ords in their. technical sense, he contends that, in those tribunals in which the;declaratlon issued, the time for removal is limited to the period w.ithin Which, by the laws or rule of court of the' state,·tlte. defendant ,must plead thereto, and· that, in those states ip ?r is used, the has the time, pl'escl'loed WhICh he must file" l).ot his defense or 9bjection or proceedings, but his answer; that is to say, he can exj
It would seem from this rule that "the writing subscribed by the
BUltNHA)1
v.
FIRST NAT. BANK.
163
haust his exceptionst<;lthe form. of the complaint by, motions to make definite and certain, or by demurrer thereto; and ·D,6t until he has been required to ::nswer, using this word to mean the technical answer, does the time within which he must pray removal begin. position. its de· There would seem to be' much force in cision necessary tD this case, it would be discussed, but we rest upon the ground first stated. , .' An objection was raiSed' at the hearmg. to the bond. It is not signed by the . but it. is executed by two responsible per· \!lons. The act of congress says that. the party desiring removal must, with his petition, to this end make and, file therewith a bond with' good and sufficient surety for his or their 'entering into the cir· cuit court. on the first day of its then next session, a copy of the record, etc. Strictissimi juris, if a party make a bond, it should be his bond. But the condition of thiH bond has already been complied with. It had ample surety.. The statute is substantially complied with. The motion to remand is refused.
BURNHAM et al. v. FIRST NAT. BANK OF LEOTI. (Circuit Court of Appeals, Eighth Circuit. No. 124. 1. REMOVAL Oll' CAUSES-CITIZENS OJ' DIFFERENT STATBS-'-SUBSTITUTED PAR-
November 14, 1892.)
Where replevin is brought in a state court by a citizen of the state against the sheriff of a county therein to recover goods levied on by writ of attachment, and the plaint11ls in the attachment are substituted for the sheriff as defendants, they, although citizens of another state, are not entitled to remove the action of replevin to a circuit court of the United States, as the original defendant had no such right 2. SAME-COMITY BETWEEN FEDERAL AND STATE COURTS.
TIES.
Query, whether, on the ground of comity, a United States court should not refuse to take jurisdiction by removal of such action.
8. SAME-TIME OF ApPLICATION.
Under Act Aug. 13, lass. § 3, (25 St. p. ....33,) requiring the application to! the removal of a cause from a state court on the ground of diverse citizenship to be filed in the state court not later than the time within which, by the state statutes, the defendant is required to plead, a petition for such removal from a court of the state of Kansas, filed 75 days after the summons was made returIJ,able, is too late; Gen. St. Kan. 1889, requiring a declaration to be answered within 20 day!! from the day the mons is made returnable.
In Error to the Circuit Court of the United States for the District of Kansas. Action of replevin brought by the First National Bank of Leoti, Kan., in a district court of the state of Kansas, against William P. Brown, sheriff, for whom JaJIles K. Burnham, Thomas K. Hanna, Albert Munger, Fred. C. Stoepel, and Oscar L. Woodgate were substituted as defendants. On' petition of the defendants so substituted the case was removed to the United States circuit court. Verdict and judgment for plaintiff. Defendanm bring error. Reversed.