Cramer v. Mack
| Decision Date | 22 April 1882 |
| Citation | 12 F. 803 |
| Parties | CRAMER v. MACK. |
| Court | U.S. District Court — Southern District of New York |
WALLACE D.J.
The motion to remand this action to the state court presents the question whether this cause could have been tried at the January term of the court of common pleas for the city and county of New York, within the meaning of that clause of the removal act of March 3, 1875, which requires the petition for removal to have been filed 'before or at the term at which said cause could first be tried. ' If the cause could have been tried at that term the petition was filed too late, and the motion to remand must prevail.
Issue had been joined by the service of an answer to the plaintiff's complaint, which answer did not require a replication. Thereupon the plaintiff noticed the cause for trial and placed it on the calendar in due season for the January term, but within 20 days from the service of the original answer the defendant served an amended answer. After this term of the state court the defendant filed his petition for removal. By the practice in this state, within 20 days after a pleading is served it may be once amended, as of course, subject to the right of the opposite party to have the amended pleading stricken out by the court if it is made to appear that the amendment was for the purpose of delay, and that the benefit of a term will be lost thereby. The amended pleading, unless it is stricken out by the court, supersedes the original pleading, and nullifies a notice of trial which may have been served by the adverse party before the amendment. The right to amend is not per se a stay of proceedings, and if the cause has been noticed for trial the party who noticed it may bring on the cause; and if it is reached before an amended pleading is served, the cause may be tried, and thereafter an amendment is of no avail.
It was obviously the intention of the removal act to preclude a party from resorting to the expedient of a removal in order to deprive his adversary of the opportunity to try the cause and the decisions in construction of the act are to the effect that a party loses his right to remove if he permits the term to pass at which he could have placed the cause in a position to be tried upon the merits if he had conformed to the rule of practice of the state court. When there is an issue which, by the practice of the court, can be brought to trial, the cause is triable; and if noticed for...
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United States v. Gentry
... ... the date of the filing of its successor. Hawkins v ... Massie, 62 Mo. 552, 553; State v. Simpkins, 77 ... Iowa, 676, 678, 42 N.W. 516; Cramer v. Mack (C.C.) ... 12 F. 803, 804, 20 Blatchf. 479; Washer v. Bullit ... Co., 110 U.S. 558, 562, 4 Sup.Ct. 249, 28 L.Ed. 249 ... When the amended ... ...
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Deford v. Mehaffy
...of the removing party to enlarge the time, after the bar of the statute has attached, by some act of his deferring the trial term. Cramer v. Mack, 12 F. 803. It is for this judgment that these parties were still on the record (and are yet) when the petition for removal was filed, at a time ......
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Langdon v. Fogg
...It was, therefore, removed in due time, and the first ground for remanding cannot be sustained. Johnson v. Johnson, 13 F. 193; Cramer v. Mack, 12 F. 803; Knowlton v. Congress, etc., 13 Blatchf. Forrest v. Keeler, 17 Blatchf. 522; (S.C. 1 F. 459.) 2. The only other ground for the motion to r......
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