Mapes v. Shaub

• Decision Date: 31 December 1931
• Docket Number: No. 856.,856.
• Citation: 54 F.2d 419
• Parties: MAPES et al. v. SHAUB.
• Court: U.S. District Court — Western District of Pennsylvania

54 F.2d 419 (1931)

MAPES et al. v. SHAUB.

No. 856.

District Court, M. D. Pennsylvania.

December 31, 1931.

Lilley & Wilson, of Towanda, Pa., for plaintiffs.

Benjamin Kuykendall and Rodney A. Mercur, both of Towanda, Pa., and Schrier & Vallilee, of Athens, Pa., for defendant.

WATSON, District Judge.

This case was removed from the court of common pleas of Bradford county to this court on a petition for removal. The question involved in the action is the validity of a certain oil and gas lease covering lands of plaintiff in Bradford county.

The petition for removal alleges diversity of citizenship of the parties, and also that the amount in controversy, exclusive of interest and costs, exceeded that sum and value of $3,000, and exceeded that sum and value at the time this action was instituted.

The plaintiffs have moved to remand the case to the court of common pleas of Bradford county, Pa.

One of the grounds of the motion to remand is that the application for removal was not made in time. The test is, whether the application for removal was made before the defendant was required to file his answer by the laws of Pennsylvania. In this case, by agreement of counsel for the parties, the defendant was not required to file his answer before September 14, 1931, and the application for removal was made September 11, 1931.

In Muir v. Preferred Accident Insurance Company of New York, 203 Pa. 338, 53 A. 158, it was decided: "The petition for the removal of a case from the state court to the federal court should be filed before the defendant is required to file an affidavit of defense. Where the parties to a cause agree that the time within which an affidavit of defense may be filed shall be extended, the time within which the case may be removed to the federal court is also extended for the same time."

Under the ruling in Muir v. Preferred Accident Insurance Co. of New York, and in my opinion, the application was made at a time before the defendant was required by the law of Pennsylvania to answer to the complaint of the plaintiff and was accordingly in time. The same question was before the court of common pleas of Bradford county, Pa., when the application for removal was presented to that court, and Judge Culver in an opinion filed September 12, 1931, reached the same conclusion. There is no denial of the diversity of citizenship.

The other ground of the motion is as follows: "2. The question involved in this action is the validity of a certain oil...