Heller v. Ilwaco Mill & Lumber Co.
| Decision Date | 07 March 1910 |
| Docket Number | 3,591. |
| Citation | 178 F. 111 |
| Parties | HELLER v. ILWACO MILL & LUMBER CO. |
| Court | U.S. District Court — District of Oregon |
Norblad & Hemple, for plaintiff.
N. H Bloomfield, for defendant.
Motion to remand. This action was commenced against a Washington corporation in the state court in July, 1909. Service of summons was had on the defendant by serving the president in the county where the action was begun on the 22d of the month. On the 29th the defendant appeared specially and moved to quash the summons. No disposition was made of this motion but on August 12th the parties entered into a stipulation waiving all proceedings under it, and permitting the plaintiff to file an amended complaint, which was done accordingly on the same date, defendant to have 20 days to answer or plead thereto. No answer or pleading was filed by defendant, but on October 6th a stipulation was entered into between the parties reviving the motion to quash. On the 16th of the same month a petition and bond for removal was prepared and filed some time prior to the 24th day of January, 1910, when an order was made removing the cause to this court. The plaintiff now moves to remand on the ground that the petition for removal was not filed within the time required by the federal statute.
The act of Congress of March 3, 1875, c. 137, 18 Stat. 470, as amended by the act of August 13, 1888, c. 866, 25 Stat. 433 (U.S. Comp. St. 1901, p. 507), provides that in cases of this character a petition for removal must be filed '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.'
This law was designed to contract the jurisdiction of the federal courts, and the tendency is to construe it strictly against the right of removal. 18 Enc. Pleading & Practice, 161, 286. It has consequently been held that the petition must be filed as soon as the defendant is required by the laws of the state to make any defense in the state court, whether in abatement or to the merits (Martin v. B. & O.R.R., 151 U.S 673, 14 Sup.Ct. 533, 38 L.Ed. 311), and that a failure to take judgment by default or an extension of time in which to answer by order of the state court or by stipulation of the parties will not extend the time for removal (4 Fed.St.Ann.pp. 354-356, and authorities cited), nor will a special appearance to set...
To continue reading
Request your trial
-
Hager v. New York Oil Co.
...he may desire to make to the pleading and the court shall immediately thereupon hear the same." Plaintiffs cite: Heller v. Ilwaco M. & L. Co. (C. C.) 178 F. 111; Martin, Adm'r, v. Railroad Co., 151 U. S. 673, 14 S. Ct. 533, 38 L. Ed. 311; Goldey v. Morning News, 156 U. S. 518, 15 S. Ct. 559......
- Robert Hawthorne, Inc. v. Director of Int. Rev.
-
Pruitt v. Charlotte Power Co.
...545; Martin v. Carter (C. C.) 48 F. 596; Mining Co. v. Hunter (C. C.) 60 F. 305; Schippior v. Cordage Co. (C. C.) 72 F. 803; Heller v. Lumber Co. (C. C.) 178 F. 111; Wayt Standard Co. (C. C.) 189 F. 231. Besides, the petition to remove does not sufficiently allege a fraudulent joinder. Wher......
-
Md. Cas. Co v. Clintwood Bank Inc
...the case just cited, Austin v. Gagan (C. C.) 39 F. 626, 5 L. R. A. 476; Fox v. Southern R. Co. (C. C.) 80 F. 945; Heller v. Ilwaco Mill & Lumber Co. (C. C.) 178 F. 111, 112. That the state court should not surrender its jurisdiction on a petition for removal unless a case is made which on t......