SIMONSON V. JORDON.
721
, SmONSON '11. JORDON.
(Oircui' Oour',B. D. New York. May 9, 1887.) REMOVAL OF CAUSES-PETITION-1'nIE FOR FILING.
Section 3 of the removal act of March 3, 1887, requires the petition for reo moval be filed at the time the defendant was required by the laws of the state, or the rules of the state court, to answer the complaint. In this case the defendant's time to answer would have expired March 2d. but, by stiPul,ation, the time was extended to March 80th. The petition for removal was not filed .till April 8th. Held;, tl:lat,the act applied to the action, although it wall pending at the time of enactment, and that, since the lltatutory time for answering could be extended by stipulation, as was done, defendant lost his right to remove by his failure to file his petition before March30th.
Evarts, Choate &: for plaintiff. Stern &: Myer8, for defendant. , This'is a to remand upon the ground that the petitioh for reD).oval' was not' filed at the time the defendant was "required, by the laws ofthestateor the rUle of the state court, to answer to the complaint,"as pr6videdby,seetiotl 30ftheremoval act of March 3, 'The action was coinnietl<;ed iIi the state court, February 10, 1887.' The defendant's time to answer would have expired March 2d, but, by stipulation, the time to answer was extended until March 30th. The petition and bond for removal were not filed until April 8th. It is insisted, in opposition' to'themotion, that the time to answer had expired when the new was passed, and that the act should not be construed, retroactively,to apply to a pending action, which it was too late to remove, because such a construction would deprive the defendant of the right to remove his action. Even such a consequence would be one of interpretation, and not of might follow, the powerto restrict or to abrogate such a right. Insurance Co. v. Ritchie, 5 Wall. 541; .Ex parte Mc(htdle, 7 Wall. 506; U. S. v. Tynen, 11 Wall. 88. But the new act did not destroy the right of the defendant to remove his case to this court. By the rUles of practice of the state court, he was not required to answer until the expiration of the time allowed by the stipulation made in the action. Although, ordinlirily, a defendant must answer within 20 days, this time may be extended by the court for good cause shown, or by consent of parties. When so extended, the ordinary time to answer is enlarged, and, as so enlarged, is the time within which the defendant is required to answer. If the defendant had filed his petition for removal at the time of answering the plaintiff's complaint, or at anytime between March 3d and that tirne, he would have complied with the act. The motion to remand is granted. v.80F.no.10-46
722 SMITH '11.
FEDEBALREPORTEB.
CHICAGO, B. & Q. Ry. Co.
(Circuit Oourt, 8. D,loWa, WD. March Term, 1887.) REMOVAL all' CAUSE-REMANn-AsSIGNMENT' 011' CAUSE all' ACTION.
Where a case has been removed, on the petition of defendant, from a state court to a United States court, by reason' of the difference of citizenship of the parties; a motion to remand, on the ground that the cause of action has been assigned to one who is of the same citizenship as. the defendant, cannot be granted when the record simply,shows a motion in the state court, before the' removal of the cause, for le&ve .to substitute a new plaintia, on which motion the court took no action.
At Law. On motion to remand · .AnderBon & Eaton and J. Lyman, fQr plttintiff. Smith for defendant. . 'SnIR-AS, J. At the June term, of of Fremont .county" Iowa" the plaintiff. filed a. petition against . the company, seekjngto recover t1;l.e sum of,$20,OOO for personal injuries received while on a ,train; OIl ,iefen<lant.'s road a passenger. On the first ,day ofJune, 1886,. the.p.efendant tiled l!(petition and bond for removal ot the cause into the fede,ral court, on the ground that J osephine Smithw!l:s, when the suit theIl'was, a citizen of Iowa, and the defendant a CO,rpo.r{l.tion. created u!lder the laws of Illi,. nois. Prior, t9 j:,he filing of motion had: been filed the substitution of one Eugene R. Cox as plaintiff, it being the cause of actioll had been assigned by Josephine Smith to said: Cox; it bei.ng also averred in the motion that he'was a citizen of Illinois. . The record stlJ.tecourt took any action upon the the record now motion fqr leave tD,fiubstitute a new plaintiff, So ,on fil(j in thi,sGpurtis appear change of ,plaintiff has been effected, and .the capse upon the record appears to be ,between and the,.r""ihvay colllpany. IJpon a motion · to remand, the. court must take tI;l.e fa.cta to be as the same are set forth in the for removal, :referency, when ilecessary, to the pleadings to ,a,scertain the character of the action., To justify us in grant. jI).gthe motion to remand, we would, be.compeIled,fu,:hold that the acand the compan;y. ·tionwas not one: between ·Tpeaverments in tAe petition, lor remoyal and the facts appearing on the · face ,(,)f the record no,t sustain us iI:\,sonnding. If it be true, 'as a matter of fact, that the Cl:\use of action had been legally assign'ed to EugClle R. Cox, 's' citizen of Illinois,/before the petition for removal was filed, no reason is now pljr,ceivedwhy such .fact would not defeat the jurisdiction of this ;,buts\ich fact, iftrue, cannot be m!1de to appear upon a motion to remand.. If Ii party desires to controvert the truth of the allegations contained in the petition for removal, he should file a proper plea to the jurisdiction, setting forth