(Circuit Court, D. California. April 20, 18B3.,
bF CITI;,>:ENSIIIP. As a party may be a re$ident of a state without being a cith. \n thereof, a simple averment that a party seeking to remove a cause ia a of a certain state is not sufficient. 2. SAME-REV. ST. + 639, CL. 2. Hev. 8t. § 639, cl. 2, haa been repealed by the act of March 3,1875; following Hyde v. Ruble, 104 U. S. 407.
REMOVAL OF CAUSE-ALLEGATION
On Motion to Remand. SAWYER, J. This case will have to go back to the state court, on the ground, if on no other, that it is not alleged in the petition or in the pleadings of what state the plaintiff is a citizen. It is alleged that Wetherbee is a citizen and resident of Boston, Massachusetts, but it does not allege of what state the plaintiff is a citizen. It is averred that he is a resident, but does not state that he is a citizen, of California. He may be a resident and not a citizen of California. It is defective in that particular. The petition to remove the case is expressly based on clause 2, § 639, of the Revised Statutes, and the supreme court held last winter, in the case of Hyde v. Ruble, 104 U. S. 407, that that section is repealed by the act of 1875. Thus the petition to remove is not based upon an act in force at the time. The application to remove, in express terms, is limited to section 639, which the supreme court hold is repealed. On these two grounds the case must be remanded. I am not certain that it ought not be remanded also on the other ground that the motion to remove was' not made in time; but an opinion on that point I shall reserve till some other occasion. I am inclined to think, however, where the rules of the court provide that a calendar shall be made up, and cases go upon the calendar for trial at the beginning of each month, that each month ought to be regarded as the beginning of a new term. There are no technical terms of the courts under the present and laws of California. Where the rules provide that a trial calendar shall be made up at the beginning of each month, I am inclined to think that the several months, when new calendars are made out and taken up, should be regarded as terms within the meaning of the act of congress. Now this case passed over a good many of such monthly terms after suit was brought, before the application to remove was made. It. is true that the law does not contemplate that there shall not be reasouable time for preparing the pleadings and forming the issues, settling preliminary questions of law, and so forth; but it does intend that there shall be reasonable expedition, and that attorneys shall bring on a trial as soon as can reasonably be done in the regular course of proceedings in conrt, and not delay. If they so delay beyond the time when it v.23F,no.9-27
could be brought to issue, and tried in the regular course of proceedings in the court, it is their fault, and not the fault of the law or of the court. This case went over from month to month, for many months, while the preliminary proceedings-demurrers and amended proceedings-were pending and dragging slowly along, and I am not certain that the case ought not to be remanded on that ground. The case is remanded, with costs.
April 9, 1885.)
(Oircuit (}PUrl, D. Jlassachusetts.
EQUITY PRAOTICE-BILL FOR DISOOVERY AND GENERAL RELIEF-ADEQUATE REMEDY AT LAW-HEMOVED CASE.
Complainant filed a bill in the state court, alleging that defendant had been granted a license to make and sell bird-cages, patented by him, and praying · that defendant be compelled to disclose the amount of license fees due, and the number of cages made and sold since a date named, and that complainant be granted such other and further relief as his case might require. The case was removed to the circuit court, where defendant demurred to the bill. lIeld, (1) thai, so far as the bill was one for general relief, the court had no jurisdiction, as there existed an adequate and complete remedy at law; and (2) that, so far as it was a bill of discovery, it was open to the objection that it contained no allegation that a suit at law had been brought, or was about to be brought, in which the discovery was material.
2. REMOVAL OF CAUSE-PRACTICE ON REMOVAL-CASE AT LAW OR IN EQuITY-
Where the suit in the state court unites legal and equitable grounds of relief or of defense, as authorized by the state statute, it may, in the federal court, be recast into two cases, one at law and one in equity, and in such a case a repleader is necessary.
On Demurrer to Bill.
COLT, J. This bill in equity was originally brought in the state court and removed to this court. The present hearing was had upon a demurrer to the bill. . The bill alleges, in substance, that the complainant, being the owner of an undivided half interest in a certain patent for hanging bird-cages, granted an exclusive license, during the life of the patent, to tbe defendants to manufacture and sell the same; that, in consideration thereof, the defenda.nts agreed to pay the complainant one cent for each bird-cage spring made and sold by them under said license; that certain sums of money, as license fees, were paid to the complainant on the first day of each and every month, from October, 1876, down to January 1,1883, but that the complainant has no means of knowing whether or not the defendants have rendered true accounts of the number of springs sold; that the complainant has no means of know-
J. MeG. Perkins, for plaintiff. J. L. S. RobM"ts, for defendants.