Spangler v. Atchison, T. & S.F.R. Co.

• Citation: 42 F. 305
• Parties: SPANGLER v. ATCHISON, T. & S.F.R. Co. et al.
• Decision Date: 05 May 1890
• Court: U.S. District Court — Western District of Missouri

42 F. 305

SPANGLER v. ATCHISON, T. & S.F.R. Co. et al.

United States Circuit Court, W.D. Missouri, Western Division.

May 5, 1890

Davis &amp Snyder, J. M. Crockett, and Hawley & Snell, for plaintiff.

Lathrop Smith & Morrow, for defendant.

PHILIPS J.

This action was brought in the circuit court of Jackson county Mo., returnable to the October term, 1889. Under the state statute (section 3514) the defendants were required to answer by the 16th day of October, 1889, which was the third day of the term. On the first day of the term the defendant the Atchison, Topeka & Santa Fe Railroad Company appeared, and by an ex parte order of the court, the time for answering was extended to the 1st day of November following. On the 30th day of October the defendant filed answer, and presented petition and bond for a removal to this court, which order was then made. Plaintiff files her motion to remand on two grounds: First, that the petition for removal was not presented in time; and, second, because the action is against two defendants, one of whom is a resident of the state and district with the plaintiff, and the cause of action is not severable.

The defendant the Atchison, Topeka & Santa Fe Railroad Company bases its right of removal, at the time it was made, on the following sections of the state and federal statutes: 'In all counties having over forty thousand inhabitants, every defendant who shall be summoned or notified according to law shall demur to or answer the petition on or before the third day of the term at which he is bound to answer, unless longer time be granted by the court,' etc. Section 3514, Rev St. Mo. Section 3 of the act of March 3, 1887, as amended August 13, 1888, (25 U.S.St.at Large, 435,) declares that such 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 or complaint of the plaintiff. ' It is conceded by counsel for defendant, as it must be, that, but for the order of the court extending the time for answering, the application for removal came too late on the 30th of October, as that was not the time fixed by the state statutes for filing such answer. But his contention is that the language of the state statute, 'unless longer time be granted by the court, ' brings the case within the language and terms of the act of congress, 'or the rule of the state court in which such suit is brought. ' I have examined all the decisions in the various circuits bearing upon this mooted question, and have reached, after some hesitation, the same conclusion as that of Judge SAWYER in Dixon v. Telegraph Co., 38 F. 377, and Austin v. Gagan, 39 F. 626, and that of Judge JENKINS in Velie v. Indemnity Co., 40 F. 545. The reasoning of the latter case is quite unanswerable, when it is read in connection with rulings of the supreme court under the act of 1875, which permitted the filing of the petition for removal at any time during the term. The supreme court held the plain meaning of the act of 1875 to be the term at which the action could first be tried or was at issue, provided the parties filed their pleadings at the time appointed by law. It made no difference whether the parties were ready for trial or not. Neither the extension of time by order of the court, nor consent of parties, could prolong the time for removal beyond the term of court. Car Co. v. Speck, 113 U.S. 86, 87, 5 S.Ct. 374; Gregory v. Hartley, 113 U.S. 742, 5 S.Ct. 743. The change made in the act by that of 1887 was to require the application for removal to be made 'at the time' the defendant is required by the statute law of the state or rule of court to file his answer. But 'rule of court' was not intended by congress, in my opinion, to apply to such a provision as that found in the Missouri statute, 'unless longer time be granted by the court. ' It clearly has reference to the practice in those states where no time is fixed by the statute for answering, but under the law ...