·:MARTIN II. CARi'lm
(Owcu(t Oourt, D. Montana. November 18, 1891
REMOVAL 011' CAUSES-TIME 011' FILING PETITION-AMENDMENTS TO PLlIlADING.
Un.der Compo St. Mont. p. 88, § 115. which provides that in case the complaint Is amended as Of course, pursuant to the right given by that section, defendant shall 'answer within 10 days after the amended complaint is served on him where defendant waives service by demurring to ·the amended complaint, the time for him ,:to answer. and heu.ce the time to Jile a petition for removal, is within 10 days after such waiver. Stipulations between' the parties, allowing defendant further time to answer, are to extend the time in which his petition for removal to a federal court
must be filed.
li'SAME-RIGHT TO REMOVE-CASus OMISSUS.
'Where a condition of tbe pleadings arises which is not contemplated by the raIl!oval act in the time for filing the petition, thefe is no authority for remO,\T'big the action; for, though the constitution gives the right of remQV'af, it does not act·'ex propril:) vigore, aud legislative action is necessary to carry it, into effect.
ActioI:\by James }1j. 'Martin against John F. Carter, SelenaR.Carter, the Montana Mining & Reduction Oqmpany, John W. Q.nd Samuel Whitney. The cause was removed to the United States circuit court, and C()ok and Whitney moved to remand it,., .' ,..... &; Muifty and Word' &; for defendant Montana Mining ,& Reduction Co. ., ' H. G. McIntire, for defendants Cook and Wh,itney.
KNOWLES, J. This cause is now before the court on amotion to remand the same to the state district court, in ,which the cause of action was instituted. ,The complaint was filed on the 3d day of October, 1890, and on the same day a summons was issued in the cause. It does not appear from the 'return of the sheriff on the summons that it was served upon the defendant Montana Mining & Reduction Company,but on the 8th day of November, 1890, said defendant filed its demurrer to plaintiff?s· complaint. On the 8th day of December, of the same year, plaintiff filed an amended complaint. On the 6th day;Of :December preceding this plaintiff and said defendant made and filed a stipulation, to the effect that plaintiff should be entitled to file an amended complaint at any time during the December term of court for 1890, and that said defendant should have until the 31st day of January, 1891, to plead thereto. On the 26th day of January said defendant filed a demurrer to this amended complaint. On the 18th of May following said defendant filed its petition for a removal of the cause to this court. There are two questions presented for consideration in the said motion to remand: First. Did said defendant file its petition for removal in time? and, second, was this a severable cause, so that said defendants could have their part of the issues presented in the complaint removed to this court?
.On 'Motion tp Remand.
MARTIN ". CARTER.
In considering the first proposition, it will be observed that there is a difference between this case and that of McDonald v. Mining Co., 47 Fed. Rep. 593, (decided at this term.) In that, the defendant was served with summons; in this, there is nothing to show that said defendant on whose petition the cause was removed was served with process. As far as the record discloses, the said defendant made a voluntary appearance by filing a demurrer to plaintiff's complaint, and was within the jurisdiction of the court when the amended complaint was tiled. There are two provisions of the statute of Montana in regard to amending a complaint. A portion of section 87, p. 81, Compo St. Mont., provides: "If the complaint be amended, a copy of the amendments shall be filed, or
the court may, in its discretion, require the complaint as amended to be filed, and a copy of the amendments shall be seryed upon every defendant to be affected thereby, 01' upon his attorney, if be has appeared by attorney. Thedefp.ndant shall answer in such time as may be ordered by the court, and judg. ment by default may be entered upon failui-e to answer, all in other cases."
115, Compo St. Mont., p. 88, is as follows:
"Any pleading mlJ.Y be amended Once by the party of course. and without cost, at a.ny time before answer or demurrer filed; and after the demurrer, arid before the trial of the issue of law thereon, by filing the.same as amended, and serving a copy on the adverse party. who may have ten days thereafter . in· which·to answer or demur to the amended pleading."
In considering these two sections together, it is evident that the first of them applies to amend ments made after the trial of the issue of law pre. sented to the court by the demurrer, while the latter applies to amend. ment;s before the trial of any such issue or before the filing of any' .answer in tb,e .case. McGary V. Pedrorena, 58 Cal. 91. Plaintiff (lould have a,mended his complaint once as of course, after said defendant .had demurredto the same, and before the hearing of the demurrer, without the consent of the said defendant. No answer had been filed thereto. Does the fact that the plaintiff' had the right to amend his complaint of ·course, at the time the stipulation above named. was entered into, the demurrer not having been heard, place the case in any different condition than it would have been if no stipulation had been entered into? It is an established principle that whel'e a party contrncts to do what the law requires him to do the contract is a nudwm pactum, there being no consideration therefor. Bish. Cont. § 48; Ayer8 v. Railroad Co., 52 Iowa, 478, 3 N. W. Rep. 522; City oj ,Newton V. Railway Co., 66 Iowa, 422, 23 N. W. Rep. 90.5. . Upon the same principle, where a party contracts to give another a right which the statute gives him, the contract amounts to' nothing. The right will be considered to have been exercised by virtue of the statute,and not of the..contract. It is true that in this case the whole of the December term of court was given to the plaintiff in which to But it is a fact that the demurrer to thE) first .amend his had not been disposed of when the amended complaint was :nled, and. until disposed of the plaintiff had the right to file his complaint
as amended aanf course.'" ;But here WEl'are confronted with anotherdifnculty. It doesnbt appear in the record that the plaintiff ever served upon defendant 'a, copy of the amendedcotilplaint. The provision of the statute is thatdelendlint would have to;days after the service of the amended compla!int in which to answer or'demur to the same. It is certain that, under. the decisions of the federal courts, the fixing of a time to answer or plead bya stipulation. does not fill the requirements of the act of 1887,and 1888 upon removals, as to the time when the petition for removal should be filed. Austin v. Gagan; 39 Fed. Rep. 626; Spangler- v.Railroad CO., 42 Fed. Rep. 305. Those statutes require the petition to be filed when defendant is required by the statute ofthe state or a rule oftha state court to ansWer or plead; McDonald v. Mining CO., B'Upra, (rendered by this court at this term.) If plaiutiff had served detEmdantwith a copy of his amended complaint, then defendant would have been reqllired by the atatute of Montana to answer 10 days after the service of or demur to tbe"l1mendeq complaint a copy of the same; and. the time for filing the petition for removal would have been fixed.' It is true that the service of a copy of the amended complaint was waived by the appearance of defendant and the nlingof its demurrer to We amended complaint. Tyrrell v. Baldwin, 67 Cal. 1, 6 Pac. Rep: 867. Any general, in the .cause would have waived the service oltha amended complainh if made after thesame was filed. After the waiver of the service of an amended complaint, perhaps the defendant would have 10 days within which to answer or demur to the complaint from the time of the waiver. I am inclined to hold that thill'is true, and that this would be a time given by the statute. The· filing of a demurrer, besides being a pleading in & case, acts as a general appearance. The two acts could ·have been separate,-first the appearance making the waiver, and then the filing of the demurrer subsequently. The fact that the time was fixed by stipulation for answering or demurring would not, as I think, change the 10 days from the time that it position that defendant would waived the service of a copy of the amE'nded complaint in which to answer or plead to the same by virtue of the statute. If so, this was thetime when defendant should have filed its petition for removal. But this position is not entirely free from doubt. If it is not a correct solution of the question presented, then it appears to me that we have a case not contemplated by the statute; or "any rule of a state court," as· that term has been construed. If the demurrer in this case would have been sustained, then, the same being a general demurrer, taking issue upon the cause of action as stated, it 'would have been a trial of a cause on its merits. Alley v. Nott,l11 U. S.472, 4 Sup. Ct. Rep. 495. If it should have been overruled in the state court, the defendant have been aUowed to answer only at the discretion 'of the court, and this. has been held not to be an answer required by statute or a rule of court. And'up to this time the dellmdant could-say that the time had not yet been reached when it was requiredbystattlte of the state or a rule of a, state court to file an answer or 'and. that there was no probability-
HALL fJ. CHATTANOOGA. AGRICULTURAL WORKS.
when that time would be reaohed in, determination of the cause. If it should considered that the facts as presented in this case show Ii condition not contemplated by pongress as expressed by the statutes of 1887 and 1888, upon removal of causes from state to federal courts, then there was no authority for removitlg 'the same; for, although the constitution may give this right of removal, the constitution does not ,act by its own vigor in such matters. ,There should be legislative action' car(ying this provision or' the constitution, into effect, and pointing out the. mode in which can be effectuated. Without a removaf of a cause from a state to a cannot take place. Takingeifher position as correct, arid the motioti, to remand this cause ought to ,be sustained. It,is certain that congress, by virtue of the llCts we have been considering, intended to provide that,apetition for the,removal of!l cause should be made, as 'soon as all the part:es were the court, atld an issue upon the. Illeritsor the controversy presented by the complaint was made to appear.. I have not thpught itneces811ry to consider the other proposition presented. The motion to remand this cause to the court in which it originated is sustafned.
11. CHATTANOOGA AGRlCOLTURAL: WORKS
(Circuit Court, E.D. Ten1l688ee, B. D. December 22, 189L)
,Tire fact' that a petition' and bond for the removal of a cause, undel' section 3 ot the removal act, have been ii·led in the state court during vallation, will not 'Warfederal circuit court in declarlngthe cause removed before the at.atecourt has had, an opportunity to take action thereon. .
OJ' CAUSEB-PETI'l'ION AND
BY STATB COURT.
state may remove the cause, notwithstanding that bis co-(I.efendants are o1tizens ot the $tatein whicb the action is brought.· . ' . . ' . .a.S.JR,.-L()OAL PREJUDICE-AoIl)AVIT. : , . Ullder BBCtion:3 of the removal act, atIB.tJlendedby tbe,acts of 1887 and 1888. pl'Oviding 'for the removal of a 'cause "WbSll it ,hall be made to to the circuit court that; fl'om prejUdice Ol' local inlluenoo, the defendant Will not be able to obtain justice in the state court, the facts relied onto show prejudice must be set out in the petition for removal, and supportecl by tbe aftlaavit of at least one oredible penon. 4. OJ' AFFIDAVIT. A billwas brougbt by'certain persons residing in Tennessee, as creditors and stockholders of a corporation,to wind up its affairs, and to hold certain stockholderS in Ohio for the balance of their aubscljptions. The applied to the federal circuit court for a l'emoval of the cause, on the ground of local prejudice, and filed an affidavit "Uegingo that tbe corporation was formed in' Tennessee to purchase the property of a manufacturing corpOI:ation in Ohio, whJch. purcbase was made j tbat tbe petitioners, as trustees for many citizena of Ohio, owned a majority of the stock j th'at many stockholders tn Tennessee were refusing to pay their SUbscriptions, on the ground that they bad been defrauded in tbe by the Ohio people, 'Snd that much talk of this ktnd had been indulged in, tbus creati-ng a local prejudice against the Ohio stockhOlders jthat in sUits 'against the Tennessee stockholders the defen,dan" ts bad set up the alleged,fraud,a'n,',d"in, or,de, r, ,PPeal to thEll,'Ocal preju,dice, bad demanded juries to try the IBsuesj.!I>lId that is informed and ·lieves that a jury will be demanded in'this,'oouse. Hetd,that this was Bufllcient .evi-dence to wan'ant, a removal; ellpecildlf ,\,\\Ilen of the bill,itself dt.closed a disposition to appeal to'lOcal. prejudice. ' "
'2. BAME-'DtVERSE CITIZENSHIP. Undel'the removal act of 1887, § 9, 01. 4, any defendant wbo is a citizen of, another