SHEPARD v. CONRAD

SHEPARD v. CONRAD. N. Y. Supreme Court, First Department; Chambers, May, 1878. Removal of Causes from State Courts to U. S. Circuit Court.— Code of Civ. Pro. § 873. Where a summons having been served upon a non-resident in this State, and an order obtained for his examination under section 873 of the Code of Civil Procedure, he appeared generally, and obtained a stay and an order to show cause why the case should not be removed to the U. S. circuit court;—Held, that the proceedings to remove were prematurely taken. Motion by defendant to remove cause. Elliott F. Shepard brought this action against Harry Conrad, by the service of a summons only. An order was then obtained for the examination of the defendant under section 872 of the Code of Civil Procedure. It appeared that there was owing to the plaintiff, a citizen of this State, $48,000 from the defendant, a citizen of Pennsylvania, alone, or from him and others, citizens of this State, and the examination was necessary to enable the drawing up of the complaint and bringing in of proper parties. Defendant appeared generally; petitioned for the removal of the cause to the United States circuit court, under the act of Congress of March 3, 1875; gave a bond in $500 penalty to file the record in that court by the first day oí its next term, and obtained a stay with an order to show cause why an order so removing the case should not be granted. Hawkins & Cothren, for the motion,—Contended that filing the petition ipso facto removed the cause, and no order was necessary; and, secondly, that if an order was necessary, the act of Congress was mandatory upon this court, and cited Shaft v. Phoenix Mutual Life Ins. Co., 67 if. T. 544. Elliott E. Shepard, in opposition,—Contended that the motion was premature, the action inchoate; that additional defendants might be brought in, citizens of this State, when the action would not be removable; that the court could determine from the complaint alone whether the amount or value in controversy exceeded $500, and as that had not been served, the first foundation to a removal was not laid; that the fair construction of the act of March 3, 1875, limited the period within which a removal could be had under it, between joining issue and reaching the cause for -trial; that defendant had submitted to the jurisdiction of the court by appearing generally, obtaining a stay and an order to show cause, and thereby waived any right to have the filing of the petition and bond operate as a remover. He cited Sewing Machine Companies, 18 Wall. 553. [MAJORITY — Davis, P. J.] Davis, P. J. The motion is denied on the ground that the proceedings to remove the cause are prematurely taken, and without prejudice to their renewal after service of complaint or issue joined.