BOCK mLANDRAT. BANK
RoCK ISLAND NAT. BANk
J. S. KEATOR LUMBER Co. et al.
October 31, 1892.)
(circuit Oourt N. D. ILlinois, S.
&uro'UL OJ' CAU8ES-TnlB OJ' APPLIOATION.
Under Aot. Cong. Aug. 13,1888, 5 8; (25 St. at Large, Po 488,> which provides that a defendant maY' remove a oaUse at lobe time or beft-re be is required by the state law or rule of court to plead or answer, a petition for remoVal filed after the stattt. tory period tor answering has e;lqlired comes too late, even, though filed within the time allowad for answering by order of court, where such order 18 based on a stipulation entered into after expiration of the statutory periOd.. .
In Equity. On motion to remand. Motion granted. Sweenff]l Walker, for complainant. W. H. Moore, for the J. S. Keator Lumber Mtller &: Starr, for Thompson & Root.
BLODGETT, District Judge. This cause was originally commenced in the circuit court of Rock Island county, in this state, and removed to this court on the petition of the defendants Thompson & Root. A motion is now made to remand the same upon two grounds: JiirBt, that the petition for removal was not filed in apt time; second, that no separable controversy is shown in the case which justifies the removal of the case in behalf of the defendants Thompson & Root. The record shows · that the defendants Thompson & Root were brought into the court as nonresidents by publication of notice under the laws of the state of TInnois in regard to chancery practice; by the published notice, these defendants were required to appear in the case on the first day of the then next September term of said court; which was on the 5th day of September, 1892; that said notice was published in time to require the defendants to make answer at the time mentioned; that no appearance was entered by said defendants, or answer or plea filed, at the time required by the notice, and under the statute, but that, on the 13th day of September, a stipulation in writing was made and filed in the cause between the complainant and these defendants, by which these defendants were given 10 days' further time in, which to plead in the cause; and the court, in pUrsuance of such stipulation, entered an order extending the time for the to plead 10 days from the date of such stipulation; and that, on the 22d day of September, the said defendants filed their petition ,arid bond for the removal of the cause to this court. Section 3 of the act of August 13, 1888, determining the jurisdiction of the circuit courts of the United States, and regulating the removal of cases from the state courts, (25 St. at Large, p. 433,) provides that a defendant desiring to remove . cause from a state court to the federl!-l court may do so "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 such suit is brought, to answer or, plead to Jhe declaration or complaint of the plaintiff." Section 16, c. 22,Rev. St. TIl., governing the practice in courts v.52F.no.11-57
of chancery, provides that "every defendant who shall be summoned, pf as, required in this act, shalloelleld'fu' except', demur,plead, or answer on the return day of the W of copr of the ?f by notlce, at the expiratIon of the time reqUlred to be given, or wlthm such further time as may be grante.dby the court; ,or, in 'ltis" ,the 8t$tUtel! oHllirioisfr.taMaese defend'antswere reqqired to plead; and, by to cMe$ ',they 'were ,required to'file tlleu removs.llion,the 5th day of September. ' But it is insisted that, inasmuch as the time for these defendants to plead was extended by an Qf for; removal was IJlade before the expiration of that extension,therefore,the applioatiol}. forremoval was made, in apUitne. " L<l<>not,QOncur;il) this view, The statute requiring the application for reIllOvlllto,:bemade at or, beforerthe time the defendant is required to plead has been held to be imperative. 626; Xelie v. 0>., 40 45 513;,1'hese defendants, then, .'Wrlie}.o qfremoval Oll the 13th qay, of tqe tiD;leto plead was and I cannot see how this Of of court made in, p1,lrsuance thereof,can be re,st9re to right of removal which, they hadlo.st. ,<;lPOlpllliiq"pt been entirely willing that these · rightto,put.in any which theym,ight ,stl;\te, 90urt.,lmta mere, agreement to that effect is not and . p,eld to waive or restore to tile defendants the right of they .. )ost. ,li)lf these reasons the ,motion to remandis wJtJ1outconsidering or passing upon the question not HI-e a caufle of action which would to remoye thE! ,case. entitle these
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In '8. suit to quiet the certain nihiinglands, an allegation in the answer that the lands do not contain known minerals in lode deposits, of sufficient value to pay ,, for workingtbem,.is of, pot a cqnclusion ,of 1alY.
O;J!' FACT AND LAW,
An alleptionthli.trespondents are oWners of said land by virtue of a certain con, " veyanoo is ,.
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" " . An allegation that thEl applicatfon for a lIatent to tM preinises lIoS " p1ll.cer ,grOund :was macN belOrethe location G,f a lode,allliged to exist therein 18 ,. qf , ',,: ,
4. SAlliE-LANDS WITHIN CITY LIMITS.
"An allegation' that the lands are withinllll.e-lSor(lorste limits of a city, and that the J,'Elspondents are the owners ancl, :qC!Cupier8of ,the 'Ilurface, without any clAim