the bill of complaint, he also formed a copartnership with the defendant Schneider, for the pnrpose 'of working an extensive granite quarry in this state, and getting out granite blocks for building purposes and street re; The terms of the copartnership, as stated by the complainant himself, would imply that complainant intended to engage in business in this state permanently. A letter, which the complainant wrote shortly after the copartnership was formed, also fully warrants the inference that he had abandoned his residence in New Jersey, and intended to take up in this state. Furthern;lOre, after the' partnership was formed, complainant closed up his business in New Jersey, sold What he could of his tools and'machinery, and removed the residue to this state. He has since resided in this state, living a portion of the time with a relative, and a portion of the time at a hotel. For the two years preceding the filing of the bill of complaint, complainant does not appear to have maintained a residence elsewhere than in the state Of Missouri. In opposition to the facts above recited, we have the statement of the complainant that in point of fact it was not his purpose to give up his residence in New Jersey, that his residence in this state was merely temporary, and that he has always intended to return to New Jersey when his business enterprises in this state were concluded. From the foregoing statement it is obvious that all of the complainant's visible acts fdr two years or more were indicative of an intention on his part to take up his abode in this state for a period of years. It also appears that his actual residence is in this state. rrhese facts must preva'11" over any secret purpose which he may have entertained to return at some indefinite future time to New Jersey and make that state his home. The result is that the plea to jurisdiotion will be sustained, and a decree will be entered dismissing the bill. '
HEIDECKER". RED STAR LINE, STEAM.SHIP
(CirCUit Oourt 8. D. NetlJ York.
REMOVAL OF CAUSEs-PIuCTlCE AFTER REMOVAL.
An action was begun in New York by complaint, and removed, 14 days after service of the complaint, into the United States circuit court, by the defendan,t, where it was filed. Nineteen days after the filing, a demurrer,' was served, which was refused on the ground that it came too late, where· upon a motion was made to compel plaintiff to accept it. Held, under the re·' moval statutes, providing "that after the removal the cause shall then proceed in the same manner as if I;)riginally commenced in the said circuit court, .. the time for or demurring had expired; but the motion would be considered as an application to open a defaUlt, and would be granted.
JacobP. Berg, for plaintiff. , Biddk & Ward, for defendant.
HEIDECKER V. REI> STAR LINES-'1'EAM-SHIP
LACOMBE, J. This action was begun in the state court by service of a summons on March 5th. Defendant, on ,March 24th, served notice of appearance·.. Qn April2d, the complaint was. served, and on April 16th, defendant removed the cause to this cour(but did not file the record until October 3d. On October 22d, defendant served a demurrer, which plaintiff returned, as served too late. Upon this state of facts two motions I;I:re made, onaby the defendant, to compel plaintiff to receive the demurrer, and the other by plaintiff, for an assessment of damages as upon default. The removal statutes provide that, after the petition and bond are filed in the state court, it shall be the duty of that court to accept said petition and bond, and to proceed no further in the matter; and that, when the record is entered in the United States circuit court, "the cause shall then proceed in the same manner as if originally commenced in the said circuit court. " The plaintiff contends that the time to answer or demur expired on April 22d, while the defendant insists that he has 20 days from the filing of the record in which to plead, and contends that such is the constant practice. In this he is in error. Such is, no doubt, the rule in the eighth circuit, (Webster v. Orothe:rB, 1 Dill. 301;) but in this circuit the usual practice upon entering the record is to obtain an extension of the time to plead, and it has never been held here that where no extension is obtained, the defendant has 20 days from the entering of the record in which to serve his answer or demurrer. The state prnctice allows the defendant 20 days in which to determine whether he will answer or demur, and to prepare and serve his pleading. The removal act of 1887, requires the defendant to determine whether or not he will remove, and to make and file his petition and bond in the state court, within the same period. Both the time to remove and the time to plead are thus, up to the date of removal, running against the defendant. When the record is entered in this court, "the cause shall then proceed in the same manner as if it had been originally commenced in thl" said circuit court." If it had been originally commenced in this court, the time to answer would begin to run against. the defendant when the complaint was served, and would expire in 20 days. In view, however, of the fact that intermediate the filing of the petition and bond, and the entering of the record, there was no court in which the pleading might be rightly filed, that interval should not be counted as part of the 20 days. The application of these rules to the present case would leave the defendant six days after entering the record, in which to serve his an· swer; 14 days of his 20 having passed before removal. The demurrer was, therefore, served too late. The application to compel the plaintiff to receive the pleading may, however, be treated as a motion to open the default; and as such will be granted upon defendant's stipulating to accept notice of trial for this term; the case to be set on the October calendar of common-law The motion to assess damages is denied.
D. Miohigan,8. D. November 28,1887.)
repealed the act of 1875. under which this case was, at that time, removable, and provided that petitions for removal must be filed at the time of pleading. Held.· that the case must be remanded.
2. SAME-JURISDICTION-POWER OF CONGRESS.
1887, in reference to the jurisdiction of the circuit courts of the United States,
petition for removal into a federal court. The act of congress of March 3,
The jurisdiCtion of the federal courts in cases between citizens of different states arises primarily under the constitution of the United States, but this jurisdiction is conferred by grant from congress, which may grant or withhold jurisdiction over removal cases.
The right of a citizen to remove a case into a federal court is not a vested right of property. The rules of statutory construction when vested rights are concerned do not apply when the jurisdiction of a federal court to entertain a removal case has been cut off by act of congress.
On Motion to Remand to state court. George M. Buck, (Oharles S. May, of counsel,) for plaintiff. Spafford Tryon, (George S. Olapp, of counsel,) for defendant.
SEVERENS, J. This is a motion to remand a case which has been brought here by removal from the circuit court for Van Buren county. The suit was commenced by summons, which was served on the defend!lnt on the twenty-eighth day of December, 1886. He appeared in that court January 7, 1887. Declaration was filed January 22, 1887, and the defendant pleaded thereto on the nineteenth day of February, 1887. The petition for removal was filed May 2, 1887. The motion involves the construction of the act of March 3, 1887, in reference to the jurisdiction of the circuit courts of the United States, and the application of that act to cases then pending and in which plea had been already filed, but which were at that time removable under the previous a,ct of 1875. The substantial ground taken by the plaintiff in support of the present motion is that the law of 1887 repealed the law of 1875 in regard to the right of removal, and altogether supplanted it, and inasmuch as the law of 1887 did not give the right of removal, because the plea was already in, such right was gone; and that the result was to cut oft' the right of removal as to all cases in that situation, when that right rested on the sole ground of diverse citizenship. And anomalous as such a consequence is, I cannot see any escape from it. Section 6 of the act of 1887, in plain terms, repeals the act of 1875, and then goes on by proviso to make a saving of all cases then pendinK in the United States courts, whether brought there by removal or originally instituted in those courts. This express repeal, iaken in connection with the saving clause, seems to me to exclude the right to remove into this court any case upon the footing of the act of 1875, after the passage of the act of 1887, and that thereafter removals could only be had upon