SPANGLER t7. ATCHISON, T. &1: S. F. R.
co. et al.
305
SPANGLER
v.
ATCHISON,·
T. & S. F. R.
CO.
(Circuit Court. W. D. Missouri, W. D. May 5, 1800.) L REMOVAL OF CAUSES-TIME OF ApPLICATION.
Act Congo Aug. 13,1888, § 3, (25 U. S. St. at Large, 485,) provides that a petition for removal must be filed at or before the time the defendant is required to plead "by the laws of the state, or the rules of the state court. It Rev. St. Mo. § 3514, requires the defendant to plead on or before the third day of the term, "unless longer time be granted by the court. It Held, that such a petition could not be filed after the third day of the term, though the defendant's time for answering had been extended by order of court, since such an order is not a rule of court, within the meaning of said act. An action for a tort against two railroad companies,"'-One a lessor and the other a lessee,--being joint and several, may be removed by one of the defendants on the ground of non-residence, though the other defendant is a resident of the same state as the plain titr.
·
2.
SAME-8EPARABLE CONTROVERSY.
At Law. On motion to remand. Da.1Jis & Snyder, J. M. (tockett, and Hawley & Sneu, for plaintiff. Lathrop, Smith & Morrow, for defendant. PHIJ,IPS, J. This action was brought in the circuit court of Jackson county, Mo., returnable to the October term, 1889. Under the state statute (section 3514) the defendants were required to answer by the 16th day of October, 1889, which was the third day of the term. On the first day of the term the defendant the Atchison, Topeka & Santa Fe Railroad Company appeared, and, by an ex parte order of the court, the time for answering was extended to the 1st day of November following. On the 30th day of October the defendant filed answer, and presented petition and bond for a removal to this court, which order was then made. Plaintiff files her motion toremand on two grounds: First, that the petition for removal was not presented in time; and, second, because the action is against two defendants, one of whom is a resident of the state and district with the plaintiff, and the cause of action is not severable. The defendant the Atchison, Topeka & Santa Fe Railroad Company bases its right of removal, at the time it was made, on the following sections of the state and federal statutes: "In all counties having over forty thousand inhabitants, every defendant who shall be summoned or notified according to law shall demur to or answer the petition on or before the third day of the term at which he is bound to answer, unless longer time be granted by the court," etc. Section 3514, Rev. Bt. Mo. Section 3 of the act of March 3, 1887, as amended August 13, 1888, (25 U. S. St. at Large, 435,) declares that such petition for removal must 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 such suit is brought, to answer or plead to the declaration or complaint of the plaintiff." It is conceded by counsel for defendant, as it must be, that, but for the order of the court extending the time for answering, the application for. removal came too late on the 30th of October, as that was not the v.42F.no.6-20
time fixed by the state statute for filing such answer. But his contention is. I th,e langulI;ge,pf the' state statute,. "unless longer time be granted by the court," brings the case within the language and terms of the act of congress,' "or the rule of the state court in which such suit is brought." I have examined all the decisions in the various circuits .,bearing uppn.this mooted qQestion, a,nd have reached, after some hesitation, the same conclusion as that of Judge SAWYER in Dixon v.Telegraph Co., 38:!!"ed. 377, andAUBtin v. Gagan, 39 Fep. Rep. 626" Rod <that <:if Judge JENKINS in Veliev. Indemnity Co., 40 Fed. Rep. 545. The case is quite unanswerable, when it is read in connection with rulings of the supreme court under the act of 1875, }'bjph pelmitledthe filing pe*ion for anytime dur'lng the·term. The supreme court held the plain meanmg of the act of · l875' to be the term at which the action could' first be tried. or was at issue, provided the parties filed their pleadings at the time appointed by law. It made no difference whether the.partics were readyJor trial or not. .exten$iQIrof,tirne by' order of the ,court, nor consent of parties, could prolong the timeforremoval beyond of'court. Oar Co. v. Speck, 113 U. S. 86, 87, 5 Sup. Ct. Rep. 374; Gregory v. ,15' SPp.· .Ct. Rep. 743.' The change made in the ·,llOt" byJhat of: thcrapplication for remov,al to,be is. required by the statute law of :the teo his anllwer. .' But "rule. ofcpnrt" .was' not 'in::W9;d,e<i Aly,qpiijiQn,t<> to such It p11ovision 'as tbJat l.'UUef?a -longer time, be granted . by the "It .cli:larly, in those states whereho but under the law the cqurt, in: practice .applying tolllJ sujtoJ:"El,<;lstl!Qliilhed.andtixtld, as much 'so. asa :statute itself, '; Jmow.fl. to l\U<>rrney:s..... This. ";lI.8; the idea entertained JPY 00875, as;indicated by the opinion in (hr Co. v. Speck, 113 U. S. 84-86, 5' Sup. Ct. Rep. 376: "Thattel'm ,', accorliing ,tQ t4e rules bf pr,ocedure of' .the they .·P!;l statutory,or Qfthe ()owt)sadoption." So;Judge SAWYERih v,Qq.gan,8Up1io"says .the party must "file'his petition at or be· time when hiS]. p,l!ladjng .is nrst due under. the law, or rules as exist when. service -ofsl1mmons is. made." When the summons pn the qefendf.\J;lt inthifl case, there was no rule of court prescribing the time in .which Hs answer was. to be filed. It had no right would, beyond the statutory period of t)uee days., Ifthe time ofreuwval.can he made to depend upon the capricious or of the judge, inell'tending it fora ln0pth or months.· there' would benQ'uniforrpity, no certainty, in law of It w0j11d in the .state. court, in, the samejurisdic:; time, f01; .oije. time' for another defend..ant, . wholly. .ppon th El disqr,etionQf humor of the court at the · in this enactment was to
:,py
-IN RE MILLER;
307
make certain, fixed, and definite the time of such removal, and to hasten trials, and not permit hurtful delays by removals. Recognizing the fact, as the lawyers of the committee who framed the law did, that in some of the states the time for pleading by defendants summoned to court was wholly regulated by positive rule of the court, in the absence of a stated statutory time, they employed the term, "or rule of the state court." The construction of this act which I have followed tends to make the time of such applications definite, uniform, and equal to all defendants, and, in my opinion, effectuates and carries out the policy of the law. As to the second ground of the motion to remand, it is to be observed that the action is for a tort against two railroad companies,-one the lessor, the other the lessee. It may be conceded to plaintiff's contention that the other defendant, the lessor, could not escape its liability for the injury and damage by letting its road to another. It may also be conceded that both are .liable. But the action is joiQt as well as several. The plaintiff had the right to proceed against either one of them, and would be entitled in the joint action to take judgment against one, and dismiss as to the other. In such a case the action is removable by the non-resident defendant. Greene v. Klinger, 10 Fed. Rep. 689; OZark v. Railway Co., 11 Fed. Rep,. 355; Kerling v. Cotzhausen, 16 Fed. Rep. 705; Boyd v. Gill, 19 Fed. Rep. 145; Soorp v. Whiteside,Id. 150; Stanbrough v. Cook, 38 Fed. Rep. 369. The motion to remand is sustained on the first ground.
In re (DIstrict Oourt,
MILLER.
E.n. South Oarolina.
May 1{),.181lO.)
Col'lJ'LIOTJ1IfG STATE. AND FEDERAL JURISDICTION.
Where a United States marShal is arrested, under iltate authority, on charge of forge"'l the fact that at the time of his arrest he was on his way to serve process lsSUtld .bY a United States commissioner does not oust the state authorities from jurisdiction, where it does not appear that he was arrested for any act done in pursuance of federal authority, or-With the intent to interfere with the service of the process in his hands. ' .
At Law. Petition for habeas corpus. On motion to remand the ;prisoner to the state authorities. A. Lathrop. Dist. Atty., for the motion. P. H. Nelson and W. St. Julian Jervey, for defendant. SIMONTON, J·. W. J.·Miller, a deputy United States marshal, wasar. rested and lodged in Lecxington jail. He had with him process issued by John Bauskett, United States and\\ras on his way to serve the process when arrested. A writ of habeas CO'l'pU8 out of this court was issued for him on the petition of George 1. Cunningham, marshal. The sheriff of.. Lexingtoq, who,};tad.'himju, custody,makesreturn to the ;wrii
