Austin v. Gagan

• Citation: 39 F. 626
• Parties: AUSTIN v. GAGAN et al.
• Decision Date: 05 August 1889
• Court: U.S. District Court — Northern District of California

39 F. 626

AUSTIN v. GAGAN et al.

United States Circuit Court, N.D. California.

August 5, 1889

Syllabus by the Court

In order to remove a cause from a state to a United States court, under the act of 1887, on the ground that it arises under a statute of the United States, the record must affirmatively show, from the facts alleged, that some disputed construction of the statute will arise for decision in the case.

Where the contest is about the facts only, the law being undisputed, there can be no removal.

The application for removal, under the act of 1887, must be made at or before the expiration of the time to answer, as prescribed by the statute or rules of court in force at the time of the service of the summons. Subsequent extensions of time to answer by special orders of the court, or by stipulations of the parties, cannot extend the time to apply for a removal under the statute.

The bond required by the statute, as well as a petition, must be filed at or before the time for answering expires, to effect a removal.

The court cannot, by an order made after the time to answer has expired, directing the bond to be filed nunc pro tunc as of a day prior to such expiration of time, cut off the right of the plaintiff to remain in the state court, which has already become vested and fixed under the statute.

James G. Maguire, for the motion.

F. I Wilson, contra.

Before SAWYER, Circuit Judge.

SAWYER J.

One ground of the motion is, that the petition does not present a case, which appears from the facts stated, to arise under the laws of the United States. One party claims the land in dispute as a homestead, and the other that the land is mineral, and therefore, not subject to be entered as a homestead. But it does not appear from any facts stated, that there is any disputed construction of either statute under which the respective parties claim. For anything that appears, both parties may agree as to the construction of the statutes, and the whole case turn upon a question of fact, as to whether the land is mineral land or not, or whether either party has performed the acts conceded to necessary to give the right claimed. Indeed, I infer from the facts stated in the petition, that the contest will really be upon the facts and not the law. In my judgment the record does not present a case for removal under the decision in Trafton v Nougues, 4 Sawy. 178, which was followed by Justice FIELD in Gold-Washing Co. v. Keyes, whose ruling was affirmed in 96 U.S. 199. See, also, McFadden v. Robinson, 10 Sawy. 398, 22 F. 10; Hambleton v. Duham, 10 Sawy 489, 22 F. 465; and Theurkauf v. Ireland, 11 Sawy. 512, 27 F. 769,-- to the same effect. Under any other rule the circuit court would have jurisdiction-- at least until the want of jurisdiction is disclosed at the trial-- in every action of ejectment, where either party traces titles to a United States patent, no matter what the matters of contest may be, and thus nearly all the litigation respecting titles to lands lying west of the Alleghany mountains might be swept into the national courts.

The jurisdiction should affirmatively appear upon the record from the facts stated, and not from the mere statement of the conclusion of the petitioner. The petition is insufficient in this respect.

The summons was served on April 8, 1889, which required the parties to appear and answer in pursuance of the provisions of the statute of California, within 10 days after service of summons. The time for answering, then under the laws of California, expired on April 28th. The time for answering was extended from time to time by stipulation of parties till May 29th. On the latter day the defendants answered, and at the same time filed their petition for removal. This was not in time. The party must file his petition for removal 'at the time, or any time before the defendant is required by the laws of the state, or the rules of the state court in which the suit is brought, to answer, or plead to the declaration or complaint of plaintiff,'-- not at or before the expiration of the extended time within which parties may choose to stipulate for filing an answer, or demurrer. The statute means at any time before the defendant is required to answer by the laws of the state, when the time is specially regulated by the statutes, and by the general rules of practice governing the matter adopted by the courts, when the matter is thus regulated, instead of by specific statutes of the state,-- not within the time provided by special orders extending the time, or application by or stipulations of the parties. As we said in Dixon v. Telegraph Co., 38 F 377, the prior act allowed the petition to be filed at any time during the term at which it might first be tried. But the supreme court, repeatedly, held, that the act meant the term at which it could be first at issue, and be ready for trial, provided the parties filed their pleadings at the time appointed by law, whether the court, or the parties were ready for trial or not. And it was also held that the extension of the time of joining issue by orders of the court, or a stipulation for time between the parties, could not extend the time for filing a petition for removal to the next term. Car Co. v. Speck, 113 U.S. 84, 5 S.Ct. 374; Gregory v. Hartley, 113 U.S. 746, 5 S.Ct. 743. And this has often been the ruling in this court as will be seen by consulting the reports of its decisions. Even the statute as thus...