WOOLF V. CHISOLM.
WOOLF 11. CHISOLM
(Owcuit OOU'l't, 8. D. New York. May 27, 1887.)
REMQVAL OF CAUSES-,-PRACTICE-PETITION-Tnm
Under the act of congress of March 8, 1887, which restricts the right of re· Il\.o'ialof an action from a state court to the United States circuit court, as it then existed, Ii. defendant must file his petitiQuwithin the time in which, by the lawS bf the iltate or the rules of the state court, he i!\ required to fil,e his or plea. and not within the time whllDlle ia required or may 'ti1ean amend¢d answer.
On Motion to Remand. At law. Vdh Duzer &: Taylor, for plaintiff. D08 Pass08 Bro8., for defendants.
'WALJ,.AQJ, J. p})vions purpose act l()relltricUb,eright of removal of an action from it state court to the circuit eourt, as it then existed. The right is restricted as to the parties )Vho can exercise it, as to the classes of actions in which it may be. exercised, and as to the time at which an election to exercise the privilege niust be made. The defendants now invoke this act to give them the privilege otrlemoval under cIrcumstances in which it did not exist previously. They had elected not to remove, and had waived their privilege before the new,aet was passed, by waiting until after the February term of the state oourt, 'the term at which the action could have been tried within the meaning of the former removal act. Subsequently, the pleadings were amended, and the defendants filed a petition for removal with'their amended answer. By the trUe construction of the new act, a defendant must file his petition within the time in which by the laws of the state or the rules of the state court he is requited to sen'e or 'file his original answer or plea, not within the time when he is required or niay elect to file an otsupplemental answer. rhe defendants,therefore,have not complied with the conditions upon which their right to remove depends. Much less can tpey rely upon the language of the new act to revise a lost right<of removal. The motion to remand is granted. v.30F.no.13-56
(OWeuit Oourt,lJ. Ne1Yra8ka. May 9, 188M \
Defendant claimed that a portion of the purchase price of certain property (. <,Aeld by plaintUf,lI.ad pot belln paid, buHt appeared that: defendant had for a . \',' series of 22 years made no effort to colIectsitid balance. Held, that defendant's , ,inaction\was sufficientlysigniticant to listablish that no such' balance of pur. ".chase money remained unpaid. . ,:
',,' It was discovered tliatbwlng to a mistalte !n the lot, a portion" forming- a Ml'1,'f/W, g,ore six t,o ,ten feet, 10 Wid,tb, ha, A be,e,n, c,onv,eyed not a street. It In a deed. This POrtio111ay between the rest of thll Jqt , appeared that meallur¢ments correspondin&, with the in the plat w;ere useilin the deed; the defendant years'" assert any tItle to the omitted portion; and that his JIlade large and had regularly paid the taxes. It Improvements upon a part of the was also in evidence that the grantor had admitted that he supposed hellad conveyed the whole lot. Held, that., the circumstancelland the evidence sufficiently established the intention to convey the whole lot, and that the court would reform the deed. J '
, In Equity.
In 1880 one John H. Kellom wa,sthe owner of'4'() acres situated in the Om,aha., city, ,dividjngth 13 tract into nine lots; of various.formsand,sit.es, one of which IQt sUPPol'led to contain 16, acres. On the north side of the lot was laid out a street named, Farnainstreet, ;which:was an of one of the principal streets, of the oity. According to the plat,the bQundarie,s of said lot,were as follows:',' ., '" at the./)Qrtn-east corner of said :Iot on Farnam:sbl'oot', running
west five hundr,ed and feet: ,thence twenty-n,lne west eightbundred and tlfteel)fe,et; south, on the line oithe lands first above described, four llundred and ninety-seven tothe south-east corner of said lands; thence east, on 'south line of' said ,tract and on tM line of the government survey, thirteen hundred and seveJi't.yLMefeetj llOrth fi ve hundred feet,! to the place of beginnirtg. " j
bill tp correct a,mistakein.a. deed.
Nebraska, and described as follows, to-wit: Commencing at the south-west
The same year Kellom and wife conveyed by deeii iliid: lot 6 to one Houston Nuckolls, and on the twelfth of November, 1861, the said Nuckolls and wife conveyed the property to defendant. On the thirteenth of July, 1863, the defendant conveyed the west 10 acres to William P. Kellogg, hy deed. whose description was as follows: "All that piece of land situate in the county of Douglas, and territory of
JEquity will relieve against a mutual mistake in regard to something material to the transaction. Fritzler v. Robinson, (Iowa.) 81 N. W. Rep. 61, and note: Griffith v. County of Sebastian, (Ark,) 8 S. W. Rep. 886; Muhlenberg v. Henning, CPa.) 9 At!. Rep. : 144; Henderson v. Stokes, (N. J.) 8 At!. Rep. 718. See, also, Guilmartin v. Urquhart, (Ala.) 1 South Rep. 897. and note; Pearce v. Pettit, (Tenn.) 4 S. W, Rep. 526.