:8ERKELEY CO. RY. & LUMBER CO.
CO. Ry. &
(Circuit CQurt, 8. D. New York. 1887)
'REMOVAL OF CAUSE-TIME TO FILE PETITION-ExTENSlON OF TruE TO ANSWER.
In New York a case cannot be tried as a cause until there is an issue, and not then, unless the issue can be brought to trial bya notice; and although thed'efendant procured several extensions of time to answer, in consequence 'of which;issue was noHntinie to bring the cause to trial at that term. which put for.the extensions might· have been done, a petition by the defendant for the ;re,movitl of the cause under the removal act of 18'75, § 3, is tiled in time if filed 'at the next term before the trial.
Motion to Remand Cause. Smith kBGwman, forplaintifl'. Stie7rlney· & Shepard, for defendant.
WALLKCE, J. The decision upon this motion to rema.nd was reserved consider the point made by the plaintiff that; the ,application for removal was not; made at the first term of the state court at which the cause cOuld'lha;ve been tried. The plaintiff'insists·that,the C!1usecquld have been triM, within the meaning of the third section of the ren)Oval aeto! 1875" at the October term of the state court, if the (lefendanthad not procured several·extensionsof time to answer,.in consequence of whiehissuewas not joined in· time to bring the oo.se to trial at that term. It has never been decided in any case to which the. attention of the court has been called that an application for removal is too late .when made at the first term at which there was an issue in the cause in a condition to be tried, except in Gurnee v. Oountyof Brunswick, 1 Hughes, 270. In case, under the laws regulating the practice of the state court, the cause which was removed was triable without pleadings. The case is therefore an exceptional one. 'rhere are expressions in the opinions in Pullman Palace Q:l.rOo. v.Speclr" H3U. S. 84, S. C. 5 Sup. Ct.. Rep. 374, Mut"Tay v. Holden, 2 Fed. Rep. 740, which imply that the removing party is to be held to a rule of diligeuGe, and .that the application is too late if after a term at which the pleadings might have , been in readiness for atria) ..o f the cause. In poth of ,these cases, however, ·the.application was -not macae until aterlJ;l supsequent to one at which there was an issue,offaetar oflaw in condition for trial; and what .' ,was therefore in harmony with the adjudications gentltat the at whiCll the application must be tnade is theftrst term at which there is an issue, whether of fact or lflaw, which is c!l.pable of trial, and in a condition to be tried. Knowlton v. (J(Y(i:[jrei8kEmpireSpringCo., 13 Blatchf.170j Forrest v.Keeler, 17 Bl.atehf. 522; S. C. 1 Fed. Rep. 459; Cramer v. Mack, 20 Blatchf.481; S.C. 12 Fed. Rep. 803. . In the language of Chief Justice WAITE in Babbitt v Olark, 103 U. S. 612: ., .'. "The act of congress does not '}>l'clvide tortIie'reinoval ofa at the first term at which a trial can be had on theissuell', as filially settled. oy leave v.29F.no.15-46
of the conrt or otherwise. but at the first term at which the cause, as a cause, coUld be tried ....
The cause cannot be trie4 as a cause, by the practice in this state, until there is an issue, and not then, unless the issue can be brought· to triaJby a notice. Although the Code of Civil Procedure requires pleadings to be within spepified times, it also authorizes the court.<; to enlarge the time, upon proper,Q&use shown, and the enlarged time is as much the statutory time as the original time of service. It has never ,been intimated that a delay by'thELremoving party to forman issue for the whole period of time authorized by the procedure of the state court for that purpose is to be deemed unreasonable. If, however, the inquiry were to be made whether the defendant has been guilty of unreasonable delay in putting the cause at issue, it would not assist the plaintiff here. It is true that if the defendant had not procured extensions of his time to answer, by stipulation, from the plaintiff, and by the order of the court, he would have been required by the rules of practice t911inswer at a time which.would have enabled the plaintiff to notice the cause for the October term, or he would have been in wa.ritbf an answer. ' But the plaintiff cannot/complain of de.lay as Unreasonable to which he consented in advance by. his own stipulation, nor is it obvious :how this court can decently assume that the defendant was not justly entitled to the time granted him by the order of the judge, whose duty it was,refuse the application if there was Dot sufficient Cause shown. The motion to remand is denied.
AdmT, and others",. OWENS, Ex'r, and others.
(Oa'rouit O()'ll,f1, 8. D, G'eorgitJ,lIJ. D; J anuaty 4,'
BILt 1l'Oll ACCOUNTING. Where' a bill in equity· praya aceount against executors, and a general settlementof the trust, all the executors are necessary
a.SAHE-DEHt1llRER FOR WAliTOFl'ARTIES.
A may object to for the ot parties; and, If such defect is 'not apparent on ,th'8 face of the bIll, the defendan' ma1 plead the matters necessary to show it. ' . ,
.. by tMOowt.)
8. SAME-PLEA' FOR WANT OF PARTIES.
, A plea for the want of
parties is a plea in bar, and goes to the whole
J. R.Sa:u88Y, for defendants.,
(]harle,.fVcpMw West, for