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.
tion of the parties. The party must make his election, and file his tiOD, at, or before, the' time when his pleading is first due, under the law, or he waives his right to a removal. The petition in this case was not in time, and the'casemust be remanded on that ground, and it is so
AssUR. Co. tI. STOCKTON COMBINED HARVESTER &; AGRIctTLTURAL WORKS, (Thirteen Cases.)
(Owcuit OO'UTt. N. D. Oalifqrnia. April 4, 1889.)
EQUITY-JUJUsDICTION-ADEQUATE RE'MEDY AT LAW.
Bills to have an adjustment of a loss under several insurance policies declared void for fraud, and to restrain actions thereon tiled by the several insurance companies, wou1d not avoid multiplicity of suits; and they are not bills for discovery. defendant 'being.a corporation, and its officers not being parties, and answers on oath being waIved. and the testimony being obtainable by examining the persons having knowledge as witnesses. The companies have a plain, adequate, and complete remed1 at law, and suits' in equity, therefore, under Rev. St. § 723, are not maintaInable.
In Equity. On demurrers to the bills. Bills by the Manchester Fire Assurance Company against the Stockton Combined Harvester & Agricultural Works, and by 12 other companies against the same defendant. Rev. St. § 723, provides that: "Suits in equity shall not be sustained * '" * in any case where a plain, adequate, and complete remedy may be had at law." Van Ness &:- Roehr, for complainants. W. L. Dudly, for defendant. Before SAWYER, Circuit Judge. SAWYER. I. The complainant and 12 other insurance companies had issued policies of insurance upon defendant's works, machinery, and manufacturedimplements on hand. The property insured was destroyed by.fil'e, and the value ofthe property destroyed was alleged by the fendant to be $142,000. An adjustment was finally made between the several companies and the defendant, by which the loss by mutual agreeI,nent was adjusted at $90.000. The complainant now files its bill in equity, alleging that this adjustment was procured by misrepre. senta,tion of facts, and fraud on the part of defendant, and that defend. ant is about to sue complainant upon the adjustment as made for its share ofthe loss. It asks that'the adjustment be declared void on the ground of fraud, and that the defendant be enjoined from suing upon it. ,The 12 other companies have filed similar bills. The defendant demurs on the ground that the fraud alleged is equally available, as a defensest law, and, that, the defendant, therefore, has a plain, adequate, and complete remedy at law within the meaning of section 723 of the Revised Statutes., The point, I think, is well taken. The bill
NEIiLIS fl·. PENNOCK 'YANUF'G· CO.
certainly :presents'no stronger case for the 'exercise of equity jurisdiction than Butar,d v.HaUBton, 119 U.S. 347 j7 Sup. Ct. Rep. 249, where it was sought to ha.ve a contract resCinded on the ground of fraud, and the supreme court denied the jurisdiction, under section 723, Rev. St., cited. The bill would not avoid a multiplicity of suits. Indeed one, suit at law with different counts against each company might settle the whole matter. Should complainant maintain the bill, it would be sued, upon the several policies and the loss would have to be readjusted in a !'suit upon eachoi the policies. 'If it should fail to maintain its bill, it would still be liable to the several suits on the adjustment. Thebill is in no sense a bill of discovery. The suit is against a corporation, and there can be no discovery by a corporation unless, its officers 01' agents, who know the facts, are made parties. Corporations do not answer upon oath, but under the corporate seal. The corporation is a non-sentient being, and, except through its officers and agents, has no knowledge.. Besides, an answer upon oath is expressly waived in the bill. So also there is no need of a discovery,as the testimony can be much more effectively obtained by examining all the parties baving knowledge as witnesses. They are now all competent witnesses. In 'view of the statute cited, I see no ground for maintaining a bill in equity in this case. Let the demurrers in the several cases be sustained and the bills dismissed.
, NELLIS "'. PENNOCK MANUF'G CO.l
(Oircuit Oourt, E., D. PennByl'Oania. February 18. 1889.,
EQUITY-:'PRACTICE-AnENDMENT OF PLEADING.
The court has power to permit an amendment. by the addition of a claim Inadvertently omitted. not strictly within the rules, where its rejection would result in no advantage to either party; subject, however, to any defense which might have been presented if the claim had been originally placed in the bill. " Costs resulting from such omission will be placed upon plaintiff.
In Equity. Motion to amend bill in equity. Plaintiff moved to amend the bill after the filing of the master's report by introducing into it a claim for damages and profits the time prior to the assignment of the patent to him, which included all rights to past damages. Francis T.Chambe:r8, for complainant. Fraley, for defendant.
:BUTLE:J;t, J. I have no doubt of the power to allow the proposed amendment to the bill.' Such an amendment is not contemplated by
lRep(lrliel\by C. Berkeley Taylor, Esq., ofthe Philadelphia bar.