Bowers v. Supreme Council American Legion of Honor

45 F. 81, 14 Sawy. 619, 1891 U.S. App. LEXIS 1705

Opinion

Sawyer, J.

This action was commenced in the superior court of the city and county of San Francisco, state of California, by filing a complaint verified October 30, 1889, but it does not appear when the complaint was filed. Notice of appearance was served on plaintiff’s attorney, dated November 12, 1889, filed November 14, 1889. On the same day, November 12, 1889, a stipulation was entered into by the parties bearing date November 12, 1889, whereby defendant “may have ten days’ additional time from this dale in which to appear and plead in the above-entitled action.” Stipulation filed November 15, 1889. This gave defendant till November 22d in which to plead, and consequently, November 22d was the day upon which defendant was required to answer in the regular course of proceedings under the laws of California, and on that'day an answer was due. On January 4, 1890, defendant filed a demurrer, and on the same day, January 4, 1890, a petition was filed to remove the cause to the United States circuit court. The petition was required by the statute to 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, for the removal of such suit into the circuit court to be held in the district where such suit is pending.” 25 St. at Large, p. 435, § 3.

The answer was due on November 22d. The petition not having been filed till January 4, 1890, was, therefore, too late, and the cause was not lawfully removed. Dixon v. Telegraph Co., 14 Hawy. 17, 38 Fed. Rep. 377; Austin v. Gagan, 14 Sawy. 151, 39 Fed. Rep. 626.

It must be remanded to the state court, whether motion to that effect be made or not, under the requisites of section 5 of the act of 1875, and it is so ordered.