REPORTEn., vol. 38.
that the plaintiff purposed to litigate the rights of Edward Cook as a tenant under; a written lease executed by Henderson, Hurd, Daniels & Kiesel in ,their own right, and, according to the prayer of the original petitiOn, proposed to ask judgment against said firm and Edward Cook, decfuringsuch lease and the title it was based on to be invalid, and also asking jUdgment against said firm and Cook for the $1,000 damages claimed for the taking away the crops and damaging the building. The plaintiff also expressly negatived in his amendment to the petition the idea that Susan or Lucy Daniels were interested in the particular controversy arising between plaintiff and the defendant Cook and his lessors under the written lease described in the amendment. Upon the face, therefore, of'plaintiff's own pleadings he haS made it clear that there is involved in this suit a controversy between himself and Cook and the said firm, in which the other defendants lire not interested, and this separable controversy is between citizens of different states, and Cook is a party defendant thereto. The petition for removal avers that the said Susan and Lucy Daniels will each by answer claim to be the owners of the property in fee-simple. so that it is thus made to appear that the .suit involVes more than one controversy, and that, when separated, there is found therein a controversy between the plaintiff and Henderson, Hurd, Daniels & Kiesel and Edward Cook, they being citizens of different states. This being so, then Edward Cook, as one of the defendants to this separate controversy, had the right to remove the cause to this court under the third clause of section 2 of the act of 1888. The motion to remand must be, therefore, overruled,and it is so ordered.
WALKER tI. O'NEILL.
(Oircuit Gourt, D. Kentucky. April 2,1889.) L
REMOVAL 011'. CAUSES-RESIDENT ALIEN-PETITION.
Under act March S, 1887, S 2'rroviding for the removal of a cause by 8 defendant being anon-resident 0 . the state, a defendant who Is an alien Is not entitled to a removal of a cause from a Court of the state of which he is a resident. and a cause removed by an alien defendant will be remanded where it Is not averred that he is a non-resident of the state:
SAME-JURIsDICTION TO DETERMINE 'RIGHT TO REMOVA.L.'
The federal COurt to which it is sought to remove a CRuse may pass upon the right to a removal. The decision of the state court thereon is not con· elusive.
On Motion to Remand. Walker G. O'Neill. Action by John l'eland and Dodd &:Grubbs,for plaintiff· .Brown, Humphrey &: Davie, for defendant.
BARR,J. Theplil.intifl' SUed thE/defendant, who is; an alien, in the' Christian circuit court, and he filed his petition for a removal to this
.' WALKER fl. O'NEILL.
.court on the 3d day of May; 1888. The petition alleges that the defendant was, aUhe commencement of thtlsuit against him, and still is, a subject of the kingdom of Great Britain and Ireland, and that the plaintiff was and is a citizen of the state of Kentucky, but fails to allege that the defendant is a non-resident of the state of Kentucky. The circuit court of Christian county adjudged the bond and the surety offered by the defendant sufficient, but decided that the petition for a removal of the action from that court was insufficient, and refused to order a transfer. The defendant has filed a transcript of the record, and, the present motions raise the questiun whether the actton is properly here. The .learned counsel of the plaintiff makes a quotation from the opinion of'thesupreme court in Railway Co. v. Dunn, 122 U. S. 513, 7 Sup Ct. Rep. 1262, in which the court says: "It [a removal petition] presents then to the state court a pure question 4)f law,and that is Whether, admitting the facts stated in the petition for removal to be true, it appears on the face of the record, which includes the petition and proceedipgs down to that tilDe. that the petitioner is entitlt'd to. a removal of the suit. That question the state court has the right to decide for itself. " ...,-And he seems to assume the decision or the state court is conclusive upon this CO\ut, and the error, if error there be, can only be corrected by a superior.state court or by the supreme court of the United States. But a careful reading of this opinion will show that court did not intend to decide that the judgment of a state court as to whether or not thea11egations of a petition for removal were sufficient to give a right to remove a suit from a state court to a federal one precluded the federal court to which a removal was sought from deciding that question for itself.' The effect of the decisions of the supreme court is to give to the United States circuit courts the exclusive jurisdiction to determine all issues of fact that may arise in removal .proceedings, and to give these courts the right, concurrently with the state courts, to determine the right to a removal as a matter of law arising upon the face ·of the record itself. StcYM v. South Carolina, 117 U. S. 430, 6 Sup. Ct. Rep. 799; Railroad Co. v. Koontz. 104 U. S. 5; Railway 00. v. Dunn, 122 U. S. 513,7 Sup. Ct. Rep. 1262. The act of March 3, 1887, which was the act in force when the removal proceedings were filed, did not, in terms, (as the act of August 13, 1888, did,) declare the second section of the act of March 3, 1875, repealed, but that act should be so construed. Gavin v. Vance, 33 Fed. Rep. 84. This section provides for the removal of suits from the state courts which arise under the constitution and laws of the United States, and under treaties made thereunder, and then it provides that "any other suit of a civil nature, at law or in equity, of which the cirQuit courts of the United States are given jurisdiction by the preare now pending or which may hereafter be ceding section, and brought in any' state court, may ,be removed into the circuit court of the United States for the proper district by the defendant or defendants therein being non-residents of that state." The preceding section gives
the circuit court jurisdiction over controversies "between citizens of a state and foreign states, citizens, or subjects," and provides that "no person shall be arrested in one district for trial in another, in any civil action before a circuit or district court; and no civil suit fjhall be brought before either of said courts against any person by any original process or proceeding in any other district than that whereof he is an inhabitant." The defendant, if an alien and a resident of this district, could have been sued in this court by original process; but does not his residence in this district, if such be the fact, deprive him of the right to remove his suit to this court? The'language is "being non-residents of that state," and this in express terms includes "any other suit of a civil nature, in law or inequity," than those which arise under the constitution and laws of the United States, or under treaties made thereunder. This construction deprives an alien of the right to have a removal of his suit from a state court into a federal court at all, except, perhaps, in the instance stated in Cooley v. McArthur, 35 Fed. Rep. 372, because, by the provisions of the first section, no original suit could be brought in the federal against an alien "in any other district than that whereof he is an inhabitant," and an alien, being an inhabitant of the district, and therefore not anon-resident; is deprived by the language of the second section from the right of removal froni the state court of'the state of which he is a resident: It is held in Cooley v. McArthur, 8upra, that an alien who is not a resident of the state in which he is sued may have a removal from a state court to the United States circuit court. This is because, as the court holds, the right to be sued only in the district in which he is an inhabitant is a personal privilege, and not a jurisdictional fact, and may be removed by the defendant alien. But the non-residency mentioned in the second section is a prerequisite to the right of re-moval from the state court, and, being this, no removal can be had, unless the non-residency exists. Cudahy v. McGeoch, 37 Fed. Rep. 1. The non-residency of the defendant in the state, being a requisite to the right of removal, should be alleged in the petition for removal. The result of this construction is to prevent an alien from being sued for debt in the federal courts, except in the district in which he is an inhabitant,unless he desires to waive his right; and, if sued in the state courts of the state of which he is a resident, he cannot have a removal to the federal court. It may be more.in harmony with thA comity between nations to ailow an alien to be sued in the national courts wherever found, andto have given him the right of removal from state courts to the national courts, without regard to his inhabitancy or residence, but this argument should be addressed to the legislature, and not the judicial department of the government. Nor is the fact that there is no such limitation to the right of an alien to remove a suit from a state court, as herein indicated in the previous statutes, material, because the language of the act of 1789, and that of the a\Jt of 1875, is plainly and distinctly different from the language used in the act of March, 1887. The motion to remand is sustained.
DIXON '11. WESTERN UNION TEL. CO. ·
DIXON '11. WESTERN UNION TEL.
(Oircuit Court; No D. Oalifornia. April 1, 1889.)
REMOVAL OF CAUSEs-Tum OF ApPLICATION-'-STIPULATIONS EXTENDINGTiMB TO PLEAD.
Under the removal act of 1887, requiring the petition for removal to be filed "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 the suit is brought, to answer or plead to the declaration or complaint, " an extension of time toanswerby consent of parties does not extend the time for filing the petition for removal.
On Motion to Remand. E. H. Wakeman and Henry H. Davis, for plaintiff. Doyle, Galpin Zeigler, for defendant. Before SAWYER, Circuit Judge.
SAWYER, J. This action was brought in the superior court of San Francisco, a state court, and removed to this court on petition of the defendant. The petition was not filed in time. The summons was served in San Francisco on October 12, 1888. The law and the summons required the defendant to answer within 10 days after service. At the expiration of 10 days, on October 22d, the defendant entered an. appearance, but the petition was not filed till November 1st,-10 days after an answer was due, and after appearance actually entered. Probably, there was an extension of time to answer by consent of parties, but it does not appear whether there was or not. Whether there was or not, it can make 00 difference. The act of 1887 requires the petition to be filed in the "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 the suit is brought, to answer or plead to the declaration or complaint,"....:...not at or before the expiration of the extended time within which parties may choose to stipUlate for the filing of an answer or demurrer. The prior act allowed the petition to be filed at any time during the term at which it might first be tried. But the supreme court, repeatedly, held, that the act meant the term at which it could be first at issue, and be ready for trial, provided the parties filed their pleadings at the time appointed by law, whether the court, or the parties were ready for trial or not. And it was also, held, that the prolongation of the time of joining issue by orders of the court, or a stipulation for time between the parties, could not extend the time for filing a petition for removal to the next term. Car Co. v. Speck, 113 U. S. 84,5 Sup. Ct. Rep. 374; Gregory v. Hartley, 113 U. S. 746, 5 Sup. Ct. Rep. 743. And this has often been the ruling in this court, as will be seen by consulting the reports of its decisions. Even the statute as thus construed was deemed by congress to be too liberal, and in 1887 the act was amended so as to require the petition to be filed at or before the time when the law required the defendant to plead. This law must be construed in the same way as the former, as to the matter of extending the time to plead by the court, or by stipuJa.