Hurd v. Gere

U.S. Circuit Court for the District of Northern New York

Hurd v. Gere

38 F. 537, 1889 U.S. App. LEXIS 2162

CourtU.S. Circuit Court for the District of Northern New York

DecidedApril 15, 1889

StatusPublished

Cited by5 cases

This text of 38 F. 537 (Hurd v. Gere) is published on Counsel Stack Legal Research, covering U.S. Circuit Court for the District of Northern New York primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

Hurd v. Gere, 38 F. 537, 1889 U.S. App. LEXIS 2162 (circtndny 1889).

Pincite

Opinion

Walt,age, J.

The order of the state court, extending the time of the defendants to answer the complaint, having been made after the time to answer had expired, without notice to tho plaintiff of the application, was doubtless irregular; but it was not void, although the court might have vacated it upon the application of the plaintiff, and it would then have been regarded as a nullity. Nevertheless it would [538]*538violate the intent, if not the literal terms, of the removal provisions of the act of March 3, 1887, to.' permit a defendant, after the time to answer a complaint has expired, to obtain an ex parte order extending his- time, Contrary to the practice of the state court, and then, by removing the cause, prevent the plaintiff from applying to the state court to vacate the order, and thus preclude him from an opportunity of having it treated as null. It should be held, in such a case, that the petition for removal was not filed “before the defendant is required by the laws of the state or the rules of the state court” to answer the complaint. The motion to remand is granted. '

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Walt,age, J.

The order of the state court, extending the time of the defendants to answer the complaint, having been made after the time to answer had expired, without notice to tho plaintiff of the application, was doubtless irregular; but it was not void, although the court might have vacated it upon the application of the plaintiff, and it would then have been regarded as a nullity. Nevertheless it would [538]*538violate the intent, if not the literal terms, of the removal provisions of the act of March 3, 1887, to.' permit a defendant, after the time to answer a complaint has expired, to obtain an ex parte order extending his- time, Contrary to the practice of the state court, and then, by removing the cause, prevent the plaintiff from applying to the state court to vacate the order, and thus preclude him from an opportunity of having it treated as null. It should be held, in such a case, that the petition for removal was not filed “before the defendant is required by the laws of the state or the rules of the state court” to answer the complaint. The motion to remand is granted. '

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Bluebook (online)

38 F. 537, 1889 U.S. App. LEXIS 2162, Counsel Stack Legal Research, https://law.counselstack.com/opinion/hurd-v-gere-circtndny-1889.

Opinion

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