Remington v. Central Pacific R. Co., 198 U.S. 95 (1905)

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Remington v. Central Pacific Railroad Company

No. 460

Submitted March 6, 1905
Decided April 17, 1905
198 U.S. 95

ERROR TO THE CIRCUIT COURT OF THE UNITED

STATES FOR THE NORTHERN DISTRICT OF NEW YORK

Syllabus

This Court has jurisdiction of a writ of error, upon a judgment dismissing the suit for want of jurisdiction, when it appears in due form that the ground of the judgment was want of service on defendant and that the plaintiff denied the validity of the removal of the case from a state court.

If a petition to remove is filed as soon as it appears in the case that the amount in controversy is sufficient to warrant removal, it is filed in season even if the time for answer has expired under the New York practice, notwithstanding failure to serve a complaint, as to which quaere.

Following up a motion to stay in the state court the day after notice of the amount in controversy, and obtaining an order relieving defendant from any technical default, which order took effect the same day that the petition for removal was filed, two days after such notice, does not estop defendant from removing the suit. The facts appearing of record, an allegation in a petition for removal that the time has not arrived at which defendant was required to answer or plead is sufficient.

Presenting the petition to a judge in chambers satisfies the statute.

Although the state court, before removal, has refused, subject to an appeal, to set aside a summons, the circuit court has power to reopen the question and to set the summons aside.

Semble, service on a director of a corporation which is doing no business and has no property in the state when he is casually in the state for a few days is bad.

The facts are stated in the opinion.