Egan v. Chicago, M. & St. P. Ry. Co.

• Decision Date: 21 January 1893
• Docket Number: 445
• Parties: EGAN v. CHICAGO, M. & ST. P. RY. CO.
• Court: U.S. District Court — Northern District of Iowa

53 F. 675

EGAN v. CHICAGO, M. & ST. P. RY. CO.

No. 445

United States Circuit Court, N.D. Iowa, Eastern Division.

January 21, 1893

Hubert O'Donnell and Henderson, Hurd, Daniels & Kiesel, for the motion.

W. J Knight, opposed.

SHIRAS District Judge.

This action was brought originally in the district court of Dubuque county, Iowa, from which it was removed to this court upon the application of the defendant company. The plaintiff is, and was when the suit was brought, a citizen of Iowa, and the railway company was and is a corporation created under the laws of the state of Wisconsin. The action is to recover damages in the sum of $27,000, alleged to have been caused to the estate of John J. Egan, the plaintiff's decedent, in that it is alleged that he was killed while in the employ of the company, and that his death was caused by negligence on part of the company. The state court granted the prayer of the petition for removal, which was filed in that court in due season, and the transcript was thereupon filed in this court.

In support of the motion to remand, now made on behalf of the plaintiff, two grounds are relied on; the first being that when the order of removal was made, and the transcript was filed in this court, no pleading had been filed in the state court on behalf of the defendant, and therefore it did not appear that there was a controversy between the parties justifying a removal. It has been the settled rule in this circuit for years, that the filing of a demurrer or answer to the petition of the plaintiff is not a prerequisite to the removal of a case which otherwise comes within the provisions of the removal acts. The supreme court of Iowa has in several cases held that the right of removal cannot be exercised until a pleading making an issue has been duly filed; but, as the question is one arising upon the proper construction of the statutes of the United States, these decisions are not binding upon this court, as would be the case if the question was one arising under the statutes of Iowa, in which event we would cheerfully follow the ruling of the state court. The statute of the United States requires the petition for removal on the ground of diverse citizenship to be filed before or at the time the defendant is required to plead in the state court. To avoid, as far as possible, the evils of the delay necessarily attendant on the change of forum, it has been the policy of the federal courts to require, as far as possible, prompt action on part of those who seek to remove a case from the state to the United States. It has been uniformly ruled that if the time for filing an answer by consent of the parties, or by order of the court, has been extended beyond the time when the pleading would be due under the statute of the state or by the general rules of the court, such extension of time for pleading will not avail to extend the time for applying for a removal; and it has been likewise held that a party cannot be permitted to experiment in the state court touching the merits of his case, and then if the results are not to his liking, remove the case into the federal court. Under the removal section of the act of 1888, a defendant may apply for a removal before the time for pleading in the state court has arrived. If it had been the intent of congress, in passing the act, not to permit a removal to be taken until after the issue had been...