TENNESSEE COAL, LUMBER &: TAN-BARK: CO. t1. WALLER.
TENNESSEE COAL, LUMBER
(Circuit Cou.rt, E. D. Tenne8see. February 4, 1889.)
1. REMOVAL OF CAUSES-AppLICATION-TIME OF MAKING. Under the act of March 3, 1887, § 3, requiring the application for removal to be made at the time, or at any time before, the defendant is required to answer or plead, it is not too late to make the application after a motion to take the bill from the files and a demurrer to the hill have been disposed of.! 2. SAME. By the rules of the state court judgment pro confesso might be entereq if defendant did not plead, answer, or demur by the June rules. Prior thereto, defendant's counsel filed a motion to take the bill from the files, and at the next term, in September, filed a demurrer. Held, that an application, filed after the motion had been disallowed and the demurrer overruled, was filed after the time in which the defendant was required to plead or answer, and was too late.!
Motion to ltemand. Action by the Tennessee Coal, Lumber & Tan-Bark Company et al. against George B. Waller. Washburn &: Templeton, for complainants. Andrew8 &: T1uyrnburgh -and W. L. Welcker, for respondent.
KEY, J. Defendant's counsel argue, and refer to many authorities to show, that the bill in this case is an original. bill, and not merely incidental or supplementary to the cause it seeks to review. Complainants' solicitors make no point against removal on this ground, and it will therefore not be considered. The reason urged for remanding this cause is that the application for removal came too late. The matter is by no means free from difficulty. The bill was filed March 15, 1888. The defendant therein is a nonresident, and there was no service of process upon him. Under the laws of the state, publication was made requiring the appearance of the defendant.. By the same authority the first Monday of each month is made a rule-day, and it is stated that a rule of the court in which the bill was filed provides that defendants shall appear at the next rule-day after llervice of process, and plead, demur, or answer, or judgment pro confesso may be taken. The first rule-day after the bill was filed, and to which it was returnable, was the first Monday in May, 1888. The next term of the court after the bill was filed met second Monday in September, 1888. The rule of chancery court as to non-resident defundants requires them to appear at a rule-day, and the defendant shall plead, answer, or demur before the first rule-day after the one named for his appearance. The publication herein required Waller to appear on the first Monday in May; and, by the rule mentioned, should he not appear then or before the following rule-day,-first Monday in June, 1888,-and plead, demur, or
lAs to what is the proper time for filing an application for removal of cause from a state to a federal court, see Whelan v. Railroad Co., 35 Fed. Rep. 849; Huskins v. Railway Co., 87 Fed. Rep. 504, and cases cited.
, FEDERAL, RlU'ORTER, ,vol.
answer, judgment pro confesso might be taken. Before the June rule-day defendant's counsel filed It written motion "to take from the files the bill purporting to be a bill of review," for various reasons therein stated. This was an appearance on the part of the defendant under the order of publication. This motion prevented a judgment pro confesso, and was not could not be disposed of, verhaps, until the c?urt met regular sessIOn III September. Atthe Septep;1ber term the motIOn was dIsallowed, whereupon a demurrer was interposed and overruled, and immediately thereafter, and dliring the term, lin iipplication for removal was made, and the, removal ordered. Complainants' solicitors that after a motion to take the bill from the Blee,and after demurrer, both of which were disposed of, it is too late to reJ:11,ove; second, if this be not so, itwas too late to have a removal, unless the application therefor was made at or before the rule-day in June, 1888., Section 3, act March 3, 1887, makes provision that in cases like this the party desiring to remove his suit "may make and file a petition in such suit in such state court at the time or any time before the defendant.isreq1,1iredby the laws of the state or the rules ofthe state court in wnich such suins brought toansweror plead to the declaration or complaint." The act of 1875 required the petition for to be filed "at or before the term at which said cause could be first tried, and before the trial thereof." It might be filed at any time eluring the first trial term, unless there was a trial. In case of trial, the application must be made'before trial. The supreme court of the United States, incollstruingthisprovision of the act of 1875, have held that the trial ofa demut:rer which goes to' the merits of a ca.use is a. trial in the Senseofthe clause referred to in the law of 1875, and that a. petition for re,moval, made after thell.ctioI). of the court oil the demurrer, came too late. Alley v. Nott,111 U. S. 472-477, 4 Sup. Ct. Rep. 495; Laidly v. Huntington, 121 U. S. 180:"182, t Sup. Ct. Rep. 855. The act of March 3,1887, does not provide that the petition for removal shall be filed before trill), or even before, the party answers or pleads,but it must be made at 'the time (or before) the defendant is required to answer or plead. Thismeans, obviously, at the term atwhichhe is required to answer or plead, if the cause be returnable to such term, notwith. standing motions and demurrers have been disposed of during suchterm. There is nothing to prevent a removal in this cause under complRimints' firstobjection. " , 'Cbmplainants' second objection has greater strength. The act of March 3, 1887, is and was intendeatobe rel'trictivein its character. It was designed to' curtail the, jurisdiction of the federal ,and diminish their business.· The law of 1875 required applicatiOIl fi;>r remova1 in C:l!-ses such be .filed "at ,or before theterm" at which they could' betried, beforetriaI. This'act of March 3, 1887, requires them to be anY,time before the defendant required by the laws of 'the state, 'or the rules of the court in which the suit is brought, to plead or "answer., The word "time" is substituted in the last actJot "term" in the,first,evidently because the time'to plead or answer might, by law or rule, be different from that of a term of the
court, and that removal should be applied for at or before such time. Now, when was the for the-defendarit'to allswet';'or plead? The order of and the publication required him to appear and plead, answer, or demur on the first Monday in May, 1888; but the rule of the prQvided, that judgment pro confesso might be entered against if he did not plead, demur, or answer by the first Monday in June. What might have been the state of the·cllSe, had the defendant entered no aRpearance on the .firstMoriday in June, itia not'necessary to consider. Defendant did appear on the 28th day of May. He might have then filed his petition for removal, but he entered a motion to dis· miss. Clearly the"time" fixed by rule of the court for him to answer plead was the first Monday iIi Jurie. He had all that day, and all the time from the 28th of May, to file his petition for removal. His motion did not 'preclude the application. It would have been removed, too, or he need' not Mve made his motion until after the cause should be removed. ' The' def'imdant insists that the term: "required." plead or answer meana "compelled" to do so, and that, as no pro confesso was taken or asked for before removal was applied for, therefore defendant had not yet been "required" to plead or answer. This position seems to be supported by McKeenv. Ives, 35 Fed. Rep. 803, in which it is said: "The right make the motion (for removal) is not restricted by the act of March 3, to the time of appearance, or to the time when a default for want of appearance might be taken, but by the terrns of the act the petition may be presented ·at the timp,or any time before, the ,defendant Is required by the laws ofth,:lstate or the rule of the state court in which the suitis brought to answer or plead to the declaration or complaint of the plaintiff.' .. The primary definition of "require" is "to to insist, to ask as afavor, .torequestj" and it is no less a requirement because no coercion 'Or compulsion may follow. The learned judge gives us no reasoning to sustain his view, but seems to think his position is necessarily inferable from the language of the law. In Wedekind v. Southern Pac; 00., 36 Fed. Rep. 279-:-281, a different conclusion is reached. In that case a suit. was commenced, .and process April 21, 1888. The summons and, the law of the state required the defEmdantto. appear ana plead in 10 days, excludirig the day of service, which wason May 1, Defendant did appear on that day, and moved to set aside the service of the summons as insufficient. On May 28th the motion was heard by the court, and taken under advisement. On May 31st, and before the motion was, dispOsed of, a petition for removal was filed. The cause 'Was remanded, the court holding: ... The statute required the defendant to plead to the complaint on or before May 1. 18&:;.· It is true that on that day defendant appeared in the state,court. and moved to set aside the service of the summons; but this. in itself. in nowise extended defendant's time to answer or plead to the complaint." . It was held that the petition for renioval came tooJate. I have come to the conclusion that in' this case the. petition for removal came t()o late, and that the cause must be remanded, and it is so .
THOMAS 11. CHICAGO&; C.
(Ot'rc'Uit Court. E. D. Michigan.
MORTGAGE - FORECLOSURE MASTER. SALE -
February 5, 1889.)
DEPOSITARIES-DEPOSIT OF PROCEEDS BY
Money received by a master in chancery in payment of property sold upon the foreclosure of a mortgage ought. in pursuance of Rev. St. U. S. 995. to be deposited with s designated depositary of the United States, and the clerk is entitled to his commission thereon.
(Syllabu8 by the Oourt.)
On petition of Walter S. Harsha, clerk of the circuit court, for an order to pay money into court. This was a bill of foreclosure, upQn which a decree for the sale of the property had been passed and executed. The decree, which was entered at the March term, 1888, directed that "out of the money which shall come into his hands as the proceeds of said sale the said master shall pay the expenses of said sale, and complainant's costs in this suit, as the same shall be taxed, and such allowances, if allY, as may be made by this court; and the residue of such money, if allY remains after final settlement with the purchaser, he shall deposit ill the First National Bank of Detroit to the credit of this court and cause, to abide the further order of this court." The sale of the road was made by the master, who reported a cash receipt of $54,255.10 over and above the costs and expenses of sale. Upon the filing of this report, an order was entered by consent of parties, that the master give public notice to the bondholders to present their bonds for paymelltj that he pay to each one the amount to which he is entitled; and "that, pending the distribution of the money, he deposit the balance of money ill his hands to the credit of said cause, in the Detroit Savings Bank. the same to be paid upon his checks, countersigned by the solicitor for the complainant." This order the clerk moved to vacate as having been improvidently made in violation of Rev. St. U. S. § 995, requiring all moneys paid to officers of the United States to be deposited with the designated depositary of the United States, in the name and to the credit of the court. John H. Bissell, for complainan t. Walter S. Harsha,in pro. per. BROWN, J. While this is nominally an effort to compel the performance of a duty enjoined by statute, viz., the deposit of money with 'a designated depositary, it is in reality a proceeding to collect the commission of the clerk upon the moneys so deposited. By Rev. St. U. S. § 995, "all moneys paid int() any court of the United States, or received by the officers thereof, ill any cause pending or adjudicated in such court, shall be forthwith deposited with the treasurer, an assistant treasurer, or a designated depositary of the United States, in the name and to credit ofsuch court: provided, that herein shall be construed to prevent the delivery of any such money upon security, according to agreement of