Brigham v. C. C. Thompson Lumber Co.

• Decision Date: 15 May 1893
• Citation: 55 F. 881
• Parties: BRIGHAM et al. v. C. C. THOMPSON LUMBER CO.
• Court: U.S. District Court — Western District of Wisconsin

55 F. 881

BRIGHAM et al. v. C. C. THOMPSON LUMBER CO.

United States Circuit Court, W.D. Wisconsin.

May 15, 1893

Lamoreux Gleason, Shea & Wright, (George G. Green, of counsel,) for plaintiffs.

Dockery & Kingston, and McDonald & Barnard, (Hayden & Start, of counsel,) for defendant.

BUNN District Judge.

This is a motion to remand the cause back to the circuit court of Bayfield county, Wis., whence it originated. It was begun in that court on September 24, 1892. The summons and complaint were served, and the time to answer the complaint expired on October 14, 1892. On October 12th, two days before the time to answer expired, the defendant filed a petition and bond and applied for a removal of the cause to this court. An order for the removal was made by the state court, and a copy of the record was filed in this court on October 17, 1892. On November 1st an answer to the complaint was filed by the defendant in this court, and on November 21st a reply by the plaintiffs. On December 8, 1892, a motion by the plaintiffs was made to remand the cause to the state court, and the same was so remanded, on the ground that the requisite jurisdictional facts were not alleged in the petition to entitle the defendant to a removal. The diverse citizenship of the parties was not set out, nor did it appear anywhere in the record. On April 8, 1893, four months after the case was sent back to the state court, and after further proceedings were had by the parties in that court, and six months after the time for removal had expired, a second or amended petition was filed by the defendant in the state court for a removal of the cause to this court, and an order was made for the removal. The cause comes up now on a second motion to remand to the state court, and the question is whether, under these circumstances, a removal of the cause to this court has been effected.

This court had supposed that the rule was fairly well settled in this circuit that the right of removal depended upon the defendant's filing a proper petition alleging all the necessary jurisdictional facts, accompanied by a proper bond within the time prescribed by the act of congress of August 13, 1888; that is to say, before the expiration of the time for answering the complaint under the law and practice of the state court. That act gives a definite rule, easily to be complied with; but if the rule prescribed by congress is not binding, but it is rather to be left to the discretion of each state court, then there is no certain rule on the subject. If a second and amended petition may be filed after the cause is properly remanded to the state court, and six months after the time prescribed by the act of congress has passed by, and after issue has been joined, and proofs taken, and other proceedings had in the state court, subsequent to the remanding of the cause, then there is no rule to govern except the discretion of the state court, which may be exercised in one case in favor of a removal, and in another case, under precisely the same state of facts, against a removal. It has been the uniform holding under all the different jurisdiction acts of congress that the right of a removal and the jurisdiction of the court depended upon a compliance with the law of congress, and not at all upon the action or nonaction of the state court; and it would be very strange if, under the act of 1887-88, which prescribes a more stringent rule than has ever before existed except under the original judiciary act of 1789, the practice and ruling of the court should be any different in this respect from what it has been under former statutes.

By the jurisdiction act of 1789 the application for removal had to be made by the defendant 'at the time of entering his appearance. ' If, at the time of appearing in the case the defendant did not make his application and file a petition stating the necessary jurisdictional facts, the right was lost. He could not do it afterwards. Under the acts of 1866 (14 Stat. 306) and of 1867 (14 Stat. 558) the application might be made at any time before the trial or final hearing of the cause in the state court. These statutes mark the extreme swing of the pendulum in favor of the jurisdiction of the federal courts over cases begun in the state courts. Under these statutes abuses sprung up. The defendant could experiment as long as he pleased in the state courts, and then, after the case could be delayed no longer, apply for a removal; so that the right came to be too frequently exercised to delay the cause, rather than to obtain an unprejudiced hearing in the federal court. The judiciary act of 1875 (18 Stat. 470) in some measure was intended to correct these abuses by restricting the right. Under that act the petition must be made and filed 'before or at the term at which such cause could be first tried, and before the trial thereof. ' As will be seen, this act, although a great restriction upon the acts of 1866 and 1867, still gave great latitude in making the application, compared with the original judiciary act passed by the first congress. By the acts of 1887 (24 Stat. 552) and of 1888 (25 Stat. 435) the time was further greatly restricted. Under those acts the defendant must make and file a petition '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. ' This rule is definite, and is liberal enough. It was no doubt the object of congress by the acts of 1887 and 1888 to restrict the right of removal in several ways: First, in regard to the person who might remove; and, second, as regards the time of making the application. He need not make the application at the moment of appearing in the cause, as under the original judiciary act. He might even answer the declaration or complaint before moving. On the contrary, he could not wait until the first term at which it could be tried, and until after the pleadings were settled, and perhaps proofs taken. He must make his application before the time for answering expired. In Wisconsin the defendant has 20 days after service of the summons and complaint to answer. Within that 20 days, whether answer has been put in or not, he should make his application and file his...