Velie v. Manufacturers' Acc. Indem. Co.

• Decision Date: 18 December 1889
• Citation: 40 F. 545
• Court: U.S. District Court — Eastern District of Wisconsin
• Parties: VELIE v. MANUFACTURERS' ACCIDENT INDEMNITY CO. OF THE UNITED STATES.

40 F. 545

VELIE v. MANUFACTURERS' ACCIDENT INDEMNITY CO. OF THE UNITED STATES.

United States Circuit Court, E.D. Wisconsin.

December 18, 1889

Fairchild & Fairchild, for defendant.

Webster & Wheeler, for plaintiff.

JENKINS J.

The plaintiff brought action in the state court against the defendant, a foreign corporation, by service of summons and complaint, on the 20th day of May, 1889. By law the answer was due June 9th. The defendant appeared to the action, and on the 3d day of June obtained from the plaintiff a stipulation extending the time to plead until July 9th. On July 6th the defendant filed in the state court its answer and also its bond and petition for the removal of the cause into the federal court, and moved for an order accordingly. The motion was denied by the state court, upon the ground that the application was not timely filed. The defendant now presents a certified copy of the record, and asks leave to docket the cause in this court.

The present removal act requires, with respect to the time within which the right to removal is to be asserted, that the petition 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 suit is brought to answer or plead to the declaration of the plaintiff.' 25 St.c. 866 Sec. 3, p. 435. The question presented is whether an extension of time to plead enlarges the time to petition for removal of the cause. The history of legislation with respect to the removal of causes from state to federal courts throws light upon the intention of congress, and aids to properly construe the provision under consideration. By the judiciary act of 1789, (1 St. 79,) the application for removal must be made by the party 'at the time of entering his appearance. ' Under that act it is clear that the right must be exercised with the initial step in the cause, or it was lost. Under acts of 1866 (14 St. 306,) and of 1867 (14 St.558,) the right of removal could be exercised at any time before the trial or final hearing of the cause. These acts enlarged both the right and time of removal, and under them abuses sprung up. The right was frequently exercised to delay the cause, rather than to obtain its adjudication in a federal court. The act of 1875 (18 St. 470) sought to correct those abuses by restricting the time. Under that act the petition must be made and filed 'before or at the term at which such cause could be first tried, and before the trial thereof. ' By the acts of 1887 (24 St. 552) and of 1888, (25 St. 435,) the time was still further restricted to the time designated by the law of the state or by rule of the state court to answer or plead to the declaration. This act is less stringent than the act of 1789, and less liberal than the other statutes. Under the act of 1875, it has been ruled that the election must be made at the first term at which the cause was triable. That was declared to be 'that term in which, according to the rules of procedure of the court whether they be statutory or rules of the court's adoption, the cause would stand for trial, if the parties had taken the usual steps as to pleading and other preparations. This term at which the case could be first tried is to be ascertained by these rules, and not by the manner by which the parties have complied with them, or have been excused for non-compliance by the court, or by stipulation among themselves. ' Car Co. v. Speck, 113 U.S. 84, 86, 5 S.Ct. 374.

So here the statute provides a definite time, viz., the time designated by the law of the state to answer the declaration, or, when the law is silent, by the rule of the state court. In most of the states that time is fixed by statute; in some of the states,-- notably in Tennessee and Indiana,-- by rule of court. In that respect congress sought to conform to the usage in the several states. Possibly, under the variant practice, no more definite time could have been designated. By the law of Wisconsin (Rev. St. Wis. Sec. 2648) the answer must be served within 20 days after service of the complaint. In my judgment it is no more competent to enlarge the time by stipulation of the parties or by order of the court extending the time to answer than it was competent, under the act of 1875, by demurrer, continuance, or stipulation, to enlarge the time beyond the term at which the cause could have been first tried. This right of removal is not a floating right, adrift upon the uncertain sea of stipulations, demurrers, dilatory pleas, and proceedings; but is fixed and stable, measured, as to the time of its exercise, by the statute law of the state when that law speaks to the subject, or by the rule of the court where the time of pleading is so determined, in the absence of statute law. As to the state of Wisconsin, the act is to be read as providing that the petition for removal must be filed within 20 days after service of the complaint. Such construction effectuates the manifest intention of congress, insures certainty and uniformity in the proceeding, prevents abuses, and, in my judgment, conforms to the plain meaning of the language employed. Other construction tends to confusion and uncertainty. The time appointed would not be uniform in all actions in the same state, and could be indefinitely extended, limited only by the ingenuity of counsel in postponing a plea to the merits. In this state, where decisions upon demurrers may by direct...