Webster v. Crothers

29 F. Cas. 547, 1 Dill. 301

Opinion

DILLON, Circuit Judge.

This removal was applied for and properly granted under the twelfth section of the judiciary act. It was applied for at the time the defendant was required to and did make his appearance. He was not bound to plead anterior to, or contemporaneously with, the filing of his petition for the removal of the cause. When that petition was duly made, the requisite facts entitling to a removal shown and the surety offered, it became ‘'the duty of the said court to accept the surety and proceed no further in the cause.” The state court could not require or receive an answer after the removal was thus applied for, and hence there was no default on the part of the defendant in not answering in that court, and none for not answering in this court, since this is the first day of the term occurring after the cause was transferred to it The cause is in equity, and the defendant will be required to plead by the next rule day to the merits. If he desires to demur we order that he do so at this term. Ordered accordingly.