AMERICAN FOUNTAIN SUPPLY & PRODUCTS v. CALIFORNIA CF CORP.

• Decision Date: 10 August 1927
• Docket Number: No. 1725.,1725.
• Citation: 21 F.2d 93
• Parties: AMERICAN FOUNTAIN SUPPLY & PRODUCTS, Inc., v. CALIFORNIA CRUSHED FRUIT CORPORATION.
• Court: U.S. District Court — District of Minnesota

21 F.2d 93 (1927)

AMERICAN FOUNTAIN SUPPLY & PRODUCTS, Inc., v. CALIFORNIA CRUSHED FRUIT CORPORATION.

No. 1725.

District Court, D. Minnesota, Third Division.

August 10, 1927.

Kerr, Nelson, Burns & Mohan, of St. Paul, Minn., for plaintiff.

Edgerton, Dohs & Edgerton, of St. Paul, Minn., and Selover & Mansfield, of Minneapolis, Minn., for defendant.

JOHN B. SANBORN, District Judge.

This cause was commenced in the state district court against the defendant, a resident of California. Jurisdiction was obtained through garnishment, and the summons was served in California. The time to answer would have expired June 28, 1927, except for a stipulation, entered into by the attorneys, extending the time "to move, plead, demur, or answer" for an additional period of 20 days. Within the time to answer as extended, but after June 28th, the case was removed to this court. It appears that, as a condition of being granted additional time to answer, the defendant was required to file a general appearance in the state court, which it did, but it has filed no pleading of any kind therein.

There is a disagreement between counsel as to what effect the stipulation was to have — whether it was conditioned upon the submission of the defendant to the jurisdiction of the state court or not — but this is of no importance. It must be given whatever effect its language entitles it to, and this court cannot be asked to reform it at this time in this proceeding.

Section 29 of the Judicial Code (section 1011, Comp. Stat. 1916 28 USCA § 72) provides that a party entitled to remove a cause "may make and file a petition, duly verified, in such suit in such 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."

In the state of Minnesota, the law requires that a defendant file or serve an answer within 20 days. Section 9225, General Statutes 1923. Section 5690, General Statutes Minnesota 1923, permits an attorney to bind his client by a written stipulation such as the one here involved. Section 9283 provides that the court, in its discretion, may permit an answer to be made after the time limited. It is evident, therefore, that the effect of the stipulation in this case was to give the defendant 20 days' additional time to plead, and it could not be compelled to answer or be adjudged in default until the expiration of that time.

Whether such a stipulation extends the time to file a petition for removal is a question with reference to which there is a lack of harmony in the federal courts. I do not find that the exact situation here presented has been before the United States Supreme Court or the Circuit Court of Appeals of this circuit. The lack of uniformity shown by the various cases cited by counsel and found in the reports seems to have arisen because of the fact that the words used in section 29 of the Judicial Code can be construed to mean the time fixed by law or rule of court for answering or pleading in all civil cases generally, or the time required by law for answering in cases where a stipulation or order of court has been made extending that time.

Ruling Case Law (23 R. C. L. 742) says: "According to the weight of authority a stipulation of the parties extending the time to plead to the complaint or declaration does not extend the period in which a petition for removal can be made. And a majority of the courts also hold that...