MacNaughton v. South Pac. C.R. Co.

• Decision Date: 24 March 1884
• Citation: 19 F. 881
• Parties: MacNAUGHTON v. SOUTH PAC. C.R. CO.
• Court: U.S. Court of Appeals — Ninth Circuit

19 F. 881

MacNAUGHTON v. SOUTH PAC. C.R. CO.

United States Circuit Court, D. California.

March 24, 1884

H. N Clement, for plaintiff.

Gordon Blanding, for defendant.

SAWYER J.

This action was commenced in the Fourth district court of the state of California on August 1, 1879. Defendant demurred August 22, 1879, and the demurrer was overruled. Defendant having answered, plaintiff demurred to that part of the answer setting up new matter as a defense, October 2, 1879. The new constitution of California of 1879 having in the mean time taken effect, the case went into the superior court, as successor to the state district court, and on January 23 1880, was assigned to department No. 7 of the superior court. On March 22, 1880, the demurrer to the answer was sustained with leave to amend. An amended answer was filed April 1 1880, which, under the Code of Civil Procedure, put the case at issue, and it was ready for trial. On January 21, 1884, the defendant filed a petition to remove the case to the United States circuit court, on the ground that the plaintiff is a citizen of Missouri, and the defendant a citizen of California. The petition alleges that 'there is in this action a controversy between citizens of different states, to-wit, a controversy between your petitioner, the defendant herein,-- which said defendant was at the time of the commencement of this action, ever since has been, and now is, a corporation duly organized and existing under and by virtue of the laws of the state of California, and which said defendant is a citizen of the said state of California,-- and the plaintiff herein, who is a citizen of the state of Missouri. ' The proper bond was filed, and a copy of the record obtained by petitioner and filed in the circuit court, February 7, 1884, the state court having made no order and taken no action upon the petition. The plaintiff moved to remand the case to the state court, on the grounds: (1) That it is not shown by the petition that plaintiff was a citizen of Missouri at the time of the commencement of this suit; (2) that it appears from the record that the application was not made 'before or at the first term at which it could have been tried,' or within the time required by law; (3) that defendant has not used due diligence in making application for removal. The supreme court has repeatedly held that on a removal the record must show that the citizenship of the parties of different states must exist both at the time of the commencement of the suit and at the time of the application for removal. In this case it does not appear but that both plaintiff and defendant were citizens of California when the suit was commenced. It simply shows that plaintiff was a citizen of Missouri at the time of the application for removal, which is four years and nearly ten months after the commencement of the suit. Clearly, the record does not show jurisdiction in this court, or a proper case for removal on the ground of citizenship, and the case must be remanded on that ground.

The present constitution of California, which went into effect on January 1, 1880, five months after this suit was commenced provides that the superior court 'shall be always open, (legal holidays and non-judicial days excepted); ' and the Code of Civil Procedure, (section 73,) adapted to the new constitution, provides that 'the superior courts shall always be open, (legal holidays and non-judicial days excepted,) and they shall hold their sessions at the county seats of the several counties, or cities and counties, respectively. They shall hold regular sessions, commencing on the first Mondays of January, April, July, and October, and special sessions at such other times as may be prescribed by the judge or judges thereof: provided, that in the city and county of San Francisco the presiding judge shall prescribe the times of holding such special sessions. ' Under these provisions of the Code and Constitution it is insisted by defendant that there are no terms of court in California, and that the provision of the act of congress of 1875, that the application for removal must be made 'before or at the term at which said cause could be first tried,' can have no application in said state; that a removal from any state court of California, therefore, is in time if the application be made at any time before the trial, no matter how long it may have been ready, or in a condition for trial. I am unable to take this view. Congress undoubtedly intended to require prompt action, and to provide that unless the party avails himself of the right promptly, after a reasonable opportunity to try the case has been had, his right to remove shall be cut off or waived. In this district it has always been held by the circuit court that the respective separate general sessions of the courts to be held four times in each year, provided for by the statutes, are 'terms,' within the reason and meaning of the act of congress. There is no magic in the word 'terms,' or in the words, the courts 'shall always be open.' Courts of chancery, and some other courts, are always open for many purposes, though not always in session; yet they have...