WEDEK'IND V. SOUTHERN PAC. CO.
eral jurisdiction does or should cease, but on the 'contrary the reason for continuing it is the same. . The jurisdiction being thus established for the "agent," who is the suCcessor of the "receiver," there can be no doubt about the right to substitute him as a new party to a suit commenced by the "receiver," during his existence as such. It is the common right and practice of substituting as a. new party to the record any successor in interest anel tion whenever a. change occurs by death or otherwlse. E!lch of these administrative officials-the "receiver" and the "agent"-represent the bank in its corporate capacity, and neither of them is more or less than the other such a representative. The "agent" is in no sense a purchaser from the "receiver," and occupies no relation analogous to that of one who takes from another by purchase, but is only asuccessor in interest and office to the same right or title as that. held by the "receiver," and so falls within the general rule of substitution of :one such representative foran:other whenever there shall be a change. Indeed, here there is searoelyany ne<lessity fora SUbstitution; except for the bare purpose of technical conformity, sinca the "receiver" and the "agent "are one and the same petson, and either ma:y, under the privileges of the statute, sue in his own name as "reoeiver" or "agent." ' Motion granted.
WEDEKIND"'. SOUTHERN PAC.
(CirCUit Oourt, D. NeDada.
RmrOVAL OJ', CAUSES-TIME OF ApPLICATION.
In an. action begun in a state court defendant was,by state'statute required to answer the complaint on May 1,1888. ,On May 1st defendant ap· pearedspecially in the case, and moved to set aside tl;1e service of summons, but neitiier sought nor obtained any rule or order of court extending Its time to plead to the complaint. The motion to quash the service of summ,oDs was heard, and taken under advisement by the court, May 28th. While the same 'Was so under advisement. on May 31st, defendant filed its general answer to the complaint, and at the same time filed its petition and;bond on removal to this court. On motion to remand. held, that the case must be remanded; the peti· tion and bond not having been filed jnthe state court at the time defendant was' by law required to answer or plead to the complaint; no extension of time having been granted by any rule or order of said state court. 1 .(Syllabu, by theOQurt.)
On Motion to Remand. John F. Alexander and R. H. Lindsay, for motion. J. B. MarMaU and Baker &; Winea, contra.
SABIN, J. The plaintiff ill this action is a. citizen and resident of the state .of Nevad,a. The defendant. is a corporation organized under the laws of the state of Keotllcky, the lessee of the ,Central Pacinc Rail-
, . lAs to what is the pl,'Oper time forflUttg an: apjl1eation for removal
state to a federal eourt, see Whelan'v. Raill"oad'CO;,85 Fed. Rep. 849,and:uote.
road; a line of road extending from San Francisco, Cal., to Ogden, Utah. The action is brought by plaintiff to recover from defendant the sum of $77,000 damages alleged to have been sustained by plaintiff on account of injuries by him received December 22, 1887, by reason of defendant's negligence and carelessness in transporting plaintiff as a passenger over said railroad, in Washoe county ,state of Nevada. The action was begun in the proper state court, in .Washoe county,April 21,1888, by the filing of a complaint and the issuance of summons thereon on said day. On the same day, the sheriff of said county personally served said mons, together with a certified copy of the complaint, onH. W. Higgins, "agent of defendant," at said county, as appears by the sheriff's return upon said summons.. H.iggins was defendant's freight agent at Reno, in said county. The summons, and statute of Nevada applicable thereto, required the defendj.nt to answer said complaint within 10 day!! after the date: of ser·vice· thereof, exclusive of the day of service. This would have required the defendant to appear and plead to said complaint on or before May 1, 1888. On said May 1st defendant.appeared spe.cially in said court, by motion to set aside the service of the summons as insufficient; This motion was supported by On May 28.th this motion Wll'S heard by the court, both rartiesbeing present byjheir attorneys, and was taken under advisement by the court. .It .conceded that this motion was never decided by the court. On May 31st, and while said motion was still pending, defendant filed, in said court, its general answer to the complaint, and at the same time filed a petition and bond for the reinoval of the cause to this court. The ground of removal relied upon is that of the citizenship of the parties, plaintifl' being a citizen of Nev'a'da, defendimt of Kentucky. Defendant failing to produce a perfect record of the case in this court, the plainti,ff caused the same to be filed here, and now moves the court to remand the case to the state cotlr.t for trial, under the provisions of s,ection 3 of the act of congress of March 3, 1887 ,re1ative to removal of The portion of said section; l!-pplicable to this motion, reads: ,"That whenever any party entitled to remove any suit mentioned in the next preceding section. except in such cases as provided for in the last from. a state court to the clause of said section, may desire to remove such 'clrcuit pi .tbe United States, he may make and file a pelitionin sllch state court at the time, or any time before the defendant is required by the laws of the state, or the rule of the state court in which sucb suit is brought. to answer or plead to the declaration or complaint of the plai ntiff, for theremoval of such suit into the circuit court to be held in the district where such Buit is pending; and.l>hall make and file therewith a bond, " etc. In this case, as we have seen, the state statute required the defendant .to tothecomplaint onor before May 1, 1888. .It is true that on that day the defehdant specially appeared in the state court, llndmoved 'to set aside the'se:rvice of the summons. But this, in itself, in nowise defeNdant's time to answer or plead to the complaint, without an order Qr of court extending such time. .The record does not t>how that any suoh rule or order was asked or obtained, nor is itsqg-
WEDEKIND fl. SOUTliEnN PAC. CO.
gested that there is any error in the record in this respect. We have carefully examined the 'rules prescribed and adopted by the district judgea of this state for the conduct of business in their courts, and nowhere in the 35, rules by 'them adopted can we find any suggestion that a motion of this kind has the force or effect of extending indefinitely, or at all, the moving party's time to plead. Doubtless, in any proper case" the would, upon motion, grant an extension of time to plead, pending the consideration of an important preliminary motion. But in this case no such request was made, or extension obtained, and we know of no reasonwhy plaintiff might not have entered defendant's default on May 2d for want of a plea, answer, or demurrer. Were we to consider defendant's motion as a special plea, or in the nature of a special plea to the jurisdiction of the court, then defenJant's position is no better; as the petition and bond for removal should have been filed contemporaneously with such plea. We do not, however, consider this motion as a plea. It was simply a motion. It might have been made and heard in the state court, or in this court, just as defendant may have preferred. It was preferred that it be heard in the Rtate court, and the petition for removal was nol filed until 30 days after the dnte of motion, and no extension of time to plead was sought or obtained, and that time expired May 1st, unless extended by order of court, or by stipulation of parties. The object of this provision of section 3 is obvious. It was intended to compel parties to decide, in limine, in what court they wish the trial of the case to be had, and to make them abide by such decision. It would seem unnecessary to review at any length the rulings of the courts, supreme or circuit, upon the removal of causes either under the act of 1875 or that of 1887. They are uniform in holding parties to a strict compliance with the terms oithe statutes. The jurisdiction of the circuit court is special, and it must clearly appear in all cases, affirmatively; not presumptively. The record in this case falls far short of this. 'It is not clear how the answer came to be filed May 31st, while the ,court was still considering the motion to quash the service of the summons; nor is it explained in the arguments submitted. The;, record should show affirmatively that it was filed within the statutory time. We have been strongly urged by defendant's counsel to consider, upon its merits, this motion, made in the state court, to quash the service o( the summons in this action; and a large part of their brief is devoted to that subject,-the sufficiency of the service upon the agent Higgins. We cannot consider this matter at all updn this motion to remand. The motion to quash the service of summons was never before us. It was argued and sl;lbmitted in the state court. And its decision now is wholly immaterial, for defendant has voluntarily appeared in the case, without answer to all of the issues tendered by the reserve, and filed its complaint. This waives any irregularity of service of summons, if any there was, and the motion to quaSh the service has now no significance. "he motiOn to remand the case to the state court must be granted, and it is so ordElred, .with costs.
t1. UNITED STATES
(CirC1J,i' Court, D. MinneBota;October 17,
Act Congo July 2, 1864, organizing the Northern Pacific Railroad Company, and granting to it a certain number of alternate sections of land on each side of Its line o[toad, provided that, whenever. prior to the definite location of its line, any of such sections should have been sold or pre·empted, other lands might be selected in lieu thereof, not more than,10 miles beyond the limits of said alternate sections. Resolution of May 31,1870, provided that in casethere should not be, in any state or territory, at the time of the final location of the road. "the amount of lands per mile granted by congress to said company, within the limits prescribed by its charter, "the company should be entitled to receive so many alternate sections of land "in such state or territory, within 10 miles on each lide of the said road belond the limits prescribed in said charter, ItS will make up such deficiency * * to the amount of the lands that have been granted." etc., "subsequent to the passage of the acto! July 2,1864." Held, that the resolution gave the company an additional 10· mile indemnity limit, and was 'not intended merely to restrict indemnity tl> 108ses occurring subsequent to the original act, and to lands situated in the state or territory in which such losses occurred.
PACIFIC GRANT-SECOND INDEMNITY: BELT.
Action by the Not-them Pacific'Railroad Company against the United States, Peter Johnson, Andrew Johilson, Thomas M. Libby, August Lindbloom, L. M. Fawsette, and D. Bush. James McNaught, and JQhn a. Bullitt, Jr., for complainant. Kerr Richard8oo, for defendants.
BREWER, J. The single, question in this case is whether the Joint olution of congress of May 31, 1870,. gave to the plaintiff an additional indemllity liDlit. In an opinion filed August 15, 1887, Mr. Secretary Lamar, then secretary of the interior, held that it did not. The recognized ability of the distinguished secretary, now ona of the justices of the supreme court, compels a careful consideration of his views and reasons. The Northern Pacific Railroad ,Company, complainant herein, was organized by an act of congress of July 2, 1864. Section 3 of that act provided for a grant of lands to aid in the construction of the road. So much of that section as is pertinent to the question reads as follows:
In Equity. On bill and demurrer.
"Sec. 3. And be it further enacted that there be, and hereby is, grantedtQ the Pacific Railroad Company/its successors and assigns, for tIle purpose of aiding in the construction of said railroad and telegraph line to the Pacific coast, and to secure safe and speedy transportation uf the mails, troops, munitions of war, and pUQUe stores over the route oli said railway. every alternate section of public land, not mineral, designated by odd numbers, to the amount of twenty alternate:seetions per mile,on each side of said rail:road line, as said company may "dqpt. through the territories of the United States, and ten of land per JPil!! on each side of said railroad whenever it passes through allY state, and whenever, on the line thereof, the United States have fUll title,not resetved, sold, granted, or otherwise priated, and free from pre-emption, or othel' claims or rights at the time the