McCullough v. Sterling School Furniture Co.

DILLON, Circuit Judge. The mode oí making and the effect of an appearance by the defendant in an action, are regulated by the Code of Iowa of 1873 (section 2626). This- was an action at law, and the Code (section 2744) provides that such an action “shall be tried at the first term after legal and timely service has been made.” This case was not triable at the January term, 1877, because process had not been served. The defendant may, however, enter a voluntary appearance, and such an appearance, if absolute and unconditional, has the same effect as to the power and jurisdiction of the court to proceed with the cause and the trial thereof, unless it shall order otherwise, as if original process had been served in time. But, as we construe the record of the state court, the appearance in this case was not general and unconditional, but it was the result of an agreement with the plaintiff’s counsel to this effect; The defendant said to the plaintiff, “I will enter an appearance now, and thus save the expense of issuing and serving process, if you will consent that the cause shall go over to the next term, and that the answer shall be theD filed;” to which the plaintiff agreed. Accordingly, the record of the state court shows that the defendant’s appearance and the continuance of the cause were made at the same time and embodied in the same entry, which states that this was by consent of the parties. If the entry of appearance had been general, and at a prior time to the order for continuance, a different question -would be presented. It is to be -observed that, as the plaintiff had not served the defendant with process, he could not have forced the defendant to a trial, and the cause could not have been tried at the January term, except by the act or consent of the defendant, and the defendant did no act, and gave no consent, which made it legally possible to have tried the suit at that term. The action could not have been tried until the succeeding term, and at that term, and before the issues were finally completed, the application for the removal was made. Under these circumstances, it is our judgment that removal was in time. Motion denied.