Page:Federal Reporter, 1st Series, Volume 8.djvu/701

BAiLEY v.'IMiia.ieks'^cM'i'.'iss. co. 6S7 �cause should be remanded. Keith v.Levi,! McGrary, 343.* But vf& are inclined to think that, where nothing to tiie contrary appears, the court ougtrt to presume, froin the fact that a' suit has been com- menced, that there is a controversy between the parties; If the defendant has made a def ault, or if, having appeared, he bas admitted the justice of the plaintiff's claim, in either case there is no contro- versy ; but where the plaintiff has brought bis suit and the defendant has appeared, and, not being in default for want of pleading, has petitioned for a reihoval, under the act of congress, we think we are bound to presume that there is a controversy. The presumption in every case is, -where a suit is brought, that there is a controversy between the parties, unless the contrary appear frofla the record. This was the view of the subject evidently taken by oongress in theienact- ment of the third section of the act above cited. By that section it is provided — , �"That whenever either party, or any one or more of ^he plaintiflfs. or defend- ants entitled to remove any suit mentioned in the next preceding- section, shall desire to remove such suit from a state court to the circuit court of the United States, he or they may make and flle & petition in such suit in^ such state court before.or at the term at which said cause could be firsttried,"etc.' �In very few, if in any, of the states of the Union are there auy statutes authorizihg the filing of an answer before the first term; There is no siich statute in this state, and, inasmuch as the: act of congress expressly authorizes the petition for removalto be made' before the term at which the case could be first tried, it followsiithat the petition may, in iuany cases, be presented before any an'swer or demurrer is authorized to be filed. Besidesy we are both of the opinion that it aflfirmatively appears from this record that there is a contro-; versy, The petition for removal distinctly so states, andit is aworn to. There is certainly nothing in the statute requiring that the fact of a controvei'sy shall appear either by an anawet or a demurrer. : If it appears from the record, whether by the petition for 'rerixo val; or otherwise, it is sufficient. ,- ' , �The case of Stanbrough v. Griffin, 52' lowa, 112, is relied upon by the counsel for plaintiff. In that easfe Rothtock, J., expresses the opin- ion that a removal is not authorized in a case where th«re isnp answer or demarrer, and the record does not show that there is ai controversy between the parties. The question whether the petition for removal was sufficient to show the controversy, was not considered in that case; and, indeed, the poiiit was not neeessary to-be decided> �*S. C. 2 FED. IlEP. 743. ■ ��� �