60 F. 305 -

RUBY

GOLD MIN. CO.,t7.BUNTER.

805

RUBY CANYON GOLD MIN. CO. et al v. HUNTER et at. ELDER et aI. v. WHITE et a!. (Circult Court. W. D. South Dakota.
REMOVAL OF CAUSES-TIME OF REMOVAL.

March 1, 1894.)

AJ case is not removable under the act of March 3, 1887, § 3, after the time fixed by the state statute or the rules of the state court for the de· fendant to answer or plead, even though the time has been extended by stipulation and by order of court.

These were two suits brought in a court of South Dakota, one by the Ruby Canyon Gold Mining Company et al. against David Hunter et al., and the other by William S. Elder, as administrator, et al., against TPomas White et al. The defendants removed the snits into this court, and a motion is now made to remand them. Martin & Mason, for complainants. Edwin Van Cise, for defendants. SANBORN, Circuit Judge. Motions to remand these cases are made because, While the petitions and bonds fo,r removal were filed ina state court within the time fixed by stipulations of the parties and orders of the court extending the time beyond that fixed by statute for the defendants to answer (as the parties and the court might lawfully do under the statutes of South Dakota), they were not filed within the 30 days within which the defendants were required by those statutes to answer or plead to the complaints in the absence of such stipulations or orders. Compo St. S. D. §§ 4908, 4939. The provision of section 3 of the act of March 3, 1887, as cor· rected by the act of August 13, 1888 (25 Stat. 433, Supp. Rev. St. p. 613, § 3), which requires the petition for removal 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 such suit is brought to answer or plead to the declaration or complaint of the plaintiff," is imperative, and requires the petition to be filed within the time fixed by the statute (where the stat· ute fixes it), or within the time fixed by the rule of court (where the rule of court fixes it), and not within any time that a defendant may obtain by stipulation with the plaintiff, or by order of court This construction secures uniformity in the practice, prevents delays, and I think is in accord with the evident intention of congress. It was not within any time that a defendant might procure to be given him by the court or his opponent, but within the time fixed by the statute, that congress intended the petition should be filed. Spangler v. Railroad Co., 42 Fed. 305; Velie v. Indemnity Co., 40 Fed. 545; Austin v. Gagan, 39 Fed. 626; Dixon v. Telegraph Co., 38 Fed. 377; Hurd v. Gete, Id. 537; Delbanco v. Singletary, 40 Fed. 177; Rock Island Nat. Bank v. J. S. Keator Lumber Co., 52 Fed. 897; Railroad Co. v. Daughtry, 138 U. S. 298, 303, 11 Sup. Ct. 306. The petitions for removal in this c.ase were not filed before the dev.60F.no.3-20

I'BDJDBAL' lUCPOBtJilB;

vol. 60.

fendants were required by the laws of South Dakota to answer or plead M:!tli'e cotnplaint. 1.JhE!yw£!retoo late. ' The motions to remand. g:ranted.

UNIT1lJD STATESv. E., O. KNIGHT CO.et aL ,(Cltrerilt<iurt, E. D. 80, 1894.) '.' ' Act Congo July 2, 1890, declares "everY contract,' combination In the form of 01' otherwise, 01' conspiracy, In restraint of trade or commerce among the several states or with 'foreign mittons" illegal; prohibits any pers6u/from a.tiemptingto monopolize,or combining or, conspIring with anyoijJer, perllou allY, part, of the u:age 01' commerce the states. pI' witll foreign natlons;8ll,d lUvests the circuit cou,rts With jurisdiction to restrain violations of the act. Held, that a eombil1litlonwhose object Is to enable a single company to monopolize and control the business of selling suglj.r, by. bu:ving up all competing concerns In the United Statell, 1$ not, in violation. of thi$ statute; for It constitutE'S no restriction upon, or monopoly of, commerce between the states, but, at most, only makes it possible for the promoters oftlW combifiatiouto restriet,or monopoUze such commerce;. should they So desire. '

Ellery P.,Inghatn, U. S. Atty., and Robert Ralston, Asst. U. S. Atty. John G-. Johnson and R. O. McMurtrie, for defendants. 'BUTLER, 'DiStrict Judgei' The bill charges, in substance, as follows: E. C. Knight Company; Spreckels' Sugar Refining Company, Frank· lin: Sugar'Refining Company and the .DelawareSiIgar House, were, until on or about March 4, 1892, independently engaged in the manufacture and sale of refined sugar.' That they were competitors with the American Sugar ;Refining Company and with 'one another; that they wel'eengaiediri trade with the several states and with:foreignnations. That the American Sugar Refining Company had,prior to Mai'ch 4, 1892, obtained the controlofi aU the sugar vefineries in the United with the exception. of the Revere, of BostOn, I1Ild the refinel'ies of the said four defendants. That the Revere produced annually about 2 per cent., and the said four defendantsabout33 per cent. of the total amount of ;sugar refined in the United Stites. That in order that the American Sugar Refining Company might obtain, complete, control of' the production and price of, refined'sugarin the United States, it and John' E. Searles, Jr., acting forit,entered into an unlawful and fraudulent, scheme to the stock, etc., of the said four defendants by, which they attempted to obtain control of all the sugar refineries, in this dis· trict:for the purpose of restraining the trade thei'eof among the other states. That' in" pursuance of this scheme, on or i about March 4, 1$92, JohnE; Searles,Jr.,'entered moo: a contract with.' the defend.ant Knigbt CGmpany and, individual stookholdersnafued for the purchase of all the:stock of the said company, and subsequently delivered to the1tlaid defendants in' exetumge therefor shares of the American 'Sugar" 'Refining Company. That on or' about" the same