Conner v. Skagit Cumberland Coal Co.
| Decision Date | 13 March 1891 |
| Citation | 45 F. 802 |
| Parties | CONNER v. SKAGIT CUMBERLAND COAL CO. |
| Court | United States Circuit Court, District of Washington |
Lindsay & King and Moore & Turner, for plaintiff.
John Y Ostrander, for defendant.
The plaintiff has moved to remand this case to the state court in which it was commenced, on the ground that the petition and bond for removal to this court were not filed until the right to remove had been lost by expiration of the time limit. Whatever the facts may be as to the service of the jurisdictional process upon the defendant, the proof of service contained in the record is unsatisfactory, and I consider that it would be unsafe to hold such proof to be sufficient. I shall therefore decide the issues presented by the motion, assuming it to be a fact that the summons has not been served upon the defendant.
Ten days prior to filing the petition and bond for removal the defendant entered a voluntary appearance in the state court by filing a general demurrer, and the plaintiff contends that with the filing of said demurrer the time allowed by law and the rules of the state court for answering expired, and, that being the time limited for filing a petition for removal, the right to remove expired simultaneously. I think, however that by the act congress intended to and did prescribe a general rule by which to measure the time within which a party having a right to remove a cause may claim such right and while it is true, as held in cases cited by counsel for the plaintiff, that neither the parties nor the court can, by any special rule or stipulation enlarging the time for answering in a particular case, also enlarge or extend the time for making application to remove a cause, it is equally true that by no act of the parties or special rule of court in a particular case can the time for filing a petition to remove be abridged. I do not mean to say that the right to remove cannot be waived, but, so long as the right remains, the limit of time within which it may be exercised is not subject to any change. In the case of Gavin v. Vance, 33 F. 84, this question was passed upon, and the same conclusion was reached by Judge HAMMOND. In his opinion on page 92 he says:
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