Dills v. Champion Fiber Co.

Hoke, J. The Federal statute as to a defendant’s right to remove a cause for diversity of citizenship (Fed. Judicial Code, see. 29) requires that such motion shall be made at or before the time for answering expires as fixed by the laws of the State or by rule of the State courts “in which said suit is instituted and pending.” This term “rule of court” appearing in the statute has reference to a standing rule having the force of law (Mecke v. Mineral Co., 122 N. C., 790-97; Fox v. R. R., 80 Fed., 945), and the decisions- in this State interpreting the statute are to the effect that where the time to file pleadings has been extended on the application of the parties, or when such time is given at some particular term by order of court, and same is not objected to, such order is taken to have been acquiesced in by defendant, and the right of removal is thereby waived. Patterson v. Fiber Co., at the present term; Ford v. Pridgeon River Lumber Co., 155 N. C., 352; Bryson v. R. R., 141 N. C., 594; Howard v. R. R., 122 N. C., 944; Moon on Removal of Causes, sec. 156. In the case of Hyde v. R. R., 167 N. C., 584, cited and chiefly relied upon by appellant, the defendant objected to the order giving time to plead, duly excepted to same, filed his petition for removal as soon after complaint was filed as opportunity was offered. Speaking to this distinction, Associate Justice Walicer, delivering the opinion in the Hyde case, said: “At no stage of the case has the defendant been in fault. It has done all that it could to save its rights. The law does not require the performance of the .impossible. The extension of time was duly objected to and the defendant can lose nothing by the adverse ruling of the Court allowing it,” etc. On the present record the defendant, as stated, having acquiesced in the order extending the time to plead, has been properly held to have waived his right of removal and the judgment denying his application must be Affirmed.