Garrard v. Silver Peak Mines
| Decision Date | 24 August 1896 |
| Docket Number | 617. |
| Citation | 76 F. 1 |
| Parties | GARRARD v. SILVER PEAK MINES et al. |
| Court | U.S. District Court — District of Nevada |
Reddy Campbell & Metson, for the motion.
M. A Murphy, contra.
This suit was commenced in the state court December 21, 1895, to recover possession of certain mineral land covered with valuable deposits, containing gold and silver and other metals, and with tailings and slimes containing gold, silver and other metals, and also to recover damages and waste committed upon the property, and for an injunction. On the day the complaint was filed, the state court issued an injunction as prayed for, without notice to the defendants. The summons was served upon the defendant the Silver Peak Mines, a corporation. On December 30, 1895, the state court extended the time for the defendant to appear and answer until the 20th day of January, 1896. On December 31, 1895 the defendant petitioned the court to dissolve the injunction; and on January 7, 1896, the court modified the injunction. On January 14, 1896, the defendant filed its petition for removal of the cause to this court, on the ground of the diversity of citizenship between it and the plaintiff. The order of removal was then made by the state court.
Plaintiff moves to remand the cause to the state court, upon the grounds (1) that this court has no jurisdiction because the petition was not filed in time; (2) that defendant L. J. Hanchett is a resident and citizen of the same state as the plaintiff, and that the controversy between the respective parties is not severable.
The statute provides that the petition for removal may be filed in the state court 'at the time or at any time before the defendant is required by the laws of the state or the rule of the state court in which suit is brought, to answer or plead to the declaration or complaint of the plaintiff. ' Supp. Rev. St. 1874-91, p. 613.
The defendant, under the laws of the state of Nevada and the practice of the state courts, was not required to plead or answer until January 20, 1896. The petition for removal was filed in and allowed by the state court prior to that time. It is, however, argued by plaintiff that the defendant, by appearing in the state court, and moving for a dissolution of the injunction, was thereby deprived of the right to thereafter move to transfer the cause to this court. It is unnecessary to review the authorities cited by counsel as to what constitutes a general appearance in a case. It is enough to say that, in my opinion, the motion made by the defendant for the dissolution of the injunction is not the sort of a plea or answer contemplated by the provisions of the act before quoted. Mahoney v. Association, 70 F. 513.
In Rycroft v. Green, 49 F. 177, the court said:
'It is the law and practice of this circuit that an extension of time to answer by order of court, whether made on stipulation or not, extends the time for removal.'
See Phoenix Ins. Co. v. Charleston Bridge Co., 13 C.C.A. 58, 65 F. 628; Price v. Railroad Co., 65 F. 825.
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