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KANSAS CITY, F.S. & MEMPHIS R. CO. V. DAUGHTRY, 138 U. S. 298 (1591)
U.S. Supreme Court
Kansas City, F.S. & Memphis R. Co. v. Daughtry, 138 U.S. 298 (1891)
Kansas City, Fort Scott and Memphis Railroad Company v. Daughtry
Submitted January 19, 1891
Decided February 2, 1591
138 U.S. 298
When an issue of fact is raised upon a petition for the removal of a cause from a state court to a circuit court of the United States, that issue must be tried in the circuit court.
The statutes of the United States imperatively require that application to remove a cause from a state court to a federal court should be made before the plea is due under the laws and practice of the state, and if the plaintiff does not take advantage of his right to take judgment by default for want of such plea, he does not thereby extend the time for application for removal.
The statutes of Tennessee require the plaintiff to file his declaration within the first three days of the term to which the writ is returnable and the defendant to appear and demur or plead within the first two days after the time allotted for filing the declaration. After due service of the writ, the plaintiff's declaration was filed within the prescribed time. The defendant three days later pleaded the general issue, and, after the lapse of four terms, filed a petition in the state court for removal on the ground of diverse citizenship. This was denied, and exceptions taken. The supreme court of the state upheld the refusal, passing upon the question of citizenship as an issue of fact.
(1) That that court had no jurisdiction over that issue of fact.
(2) But that, as the application for removal was made too late, its denial was right as matter of law, and the judgment of that court should be affirmed.
Motion to dismiss or affirm.
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