Rehearing denied December 10, 1918.
On Petition eor Second Hearing.
(176 Pac. 589.)
In Banc.
For the petition there was a brief presented by Messrs. Emmons & Webster and Messrs. Stapleton, Conley S Stapleton.
Mr. A. H. McCurtain, Mr. J. W. Kaste, Messrs. Wilbur, Spencer S Bechett and Messrs. Bauer & Greene, opposed.
HARRIS, J.The petition for a rehearing filed by the Marshall-Wells Hardware Company presents no *357new questions. It is stated, however, in the petition that the Circuit Court for Multnomah County did in truth enter an order on February 7, 1917, extending the time within which the defendant could plead to February 17,1917, and that therefore the petition and bond for removal to the federal court alleged to have been filed on February 15, 1917, were filed within the time required by law, and consequently operated to deprive the state court of jurisdiction.
The complaint was filed on' December 13, 1916, and the company admits that it was served with a copy of the summons and of the complaint on December 14, 1916. The second separate answer pleaded by the company alleges that on February 15, 1917, this defendant filed a petition and bond for the removal of the cause from the state court to the federal court; that the state court refused to make an order removing^ said cause, “but on the contrary directed, ordered and adjudged that the same be not removed.” A copy of the petition and bond alleged to have been filed on February 15} 1917, are attached to the answer and marked Exhibit 1. After reciting the date of the commencement of the action and stating the date when the company was served with summons and complaint Exhibit 1 avers that within the time allowed by law the company filed a petition for removal of the cause to the federal court and a copy of this petition is marked Exhibit “A” and is attached to Exhibit 1. Exhibit 1 avers that upon the filing of Exhibit “A” the cause was removed to the federal court;
“That thereafter the plaintiff filed a motion to remand said cause to the state court which motion was allowed and said cause was duly and regularly remanded. That thereupon and pursuant to the law of' this state and the rules and practice thereof and of this court an order was duly and regularly made and en*358tered herein extending and enlarging the time within which this petitioner was required to plead or answer herein to and including February 17,1917.”
The reply filed by the plaintiff denies every allegation contained in the answer,
“except that said plaintiff admits that after the time allowed by law for the removal of this cause to the District Court of the United States for the District of Oregon, said defendant attempted to remove the same but was unsuccessful.”
In brief, the answer shows through Exhibit 1 that the • company filed two petitions for removal. The first petition was granted and the cause was removed to the federal court; but upon motion of the plaintiff the federal court remanded the cause to the state court. The defendant is relying upon the second petition for removal ; and the company must therefore present a record showing that the second petition was filed in time. The answer merely alleges that the petition was ‘ ‘ duly and regularly filed” pursuant to the acts of Congress. The reply denies that the petition was -filed in time. Aside from the allegation quoted from the body of the answer and the. excerpt taken from Exhibit 1 there is nothing in the record presented to us to show that the -state court made an order extending the time within which the company could plead or the date when such order was made. Aside from the allegations in the answer there is nothing in the record to show the date upon which the second petition was filed.
29. The petition for rehearing states that the order of removal, based upon the first petition, was signed and filed on December 22, 1916; that the transcript on removal was filed on January 17, 1917, in the federal court; that on January 24, 1917, the plaintiff filed a petition to remand; that on February 5th, the federal court made an order remanding the case to the state *359court; that on February 7th, the state court made an order extending the time within which defendant could plead to February 17, 1917; that the second petition for removal was filed on February 15th, and this application was denied by the state court on February 16, 1917. The record upon which this appeal was twice argued and twice decided does not give us all the information contained in the petition for a rehearing; and it is therefore suggested in the petition for a rehearing that we order the record to be supplemented so as to supply the omissions. The appeal has been twice argued; the question arising out of the second affirmative defense pleaded by the defendant company has been twice decided adversely to its contention; and we would not now be warranted in making the suggested order: State v. Jennings, 48 Or, 483, 494 (87 Pac. 524, 89 Pac. 421); Noble v. Watrous, 84 Or. 418, 426 (163 Pac. 310, 165 Pac. 349); 3 Oye. 144; 4 C. J. 497.
30. Even though the dates, orders and papers are as stated in the petition for a rehearing, and even though it be assumed that an order extending the time to plead operates as an extension of the time within which a petition for a removal may be filed, nevertheless the company cannot prevail. The second petition for removal was simply an enlarged edition and amplification of the first petition; and therefore in denying the second application the state court merely “did no more than bow to the decision and order of the federal court when it remanded the record”: McLaughlin v. Hallowell, 228 U. S. 278, 286 (57 L. Ed. 835, 33 Sup. Ct. Rep. 465); St. Paul (& Chicago R. Co. v. McLean, 108 U. S. 212 (27 L. Ed. 703, 2 Sup. Ct. Rep. 498).
It will not be necessary further to discuss the questions mentioned in the petition for a rehearing, but it is sufficient to say that we have carefully considered the *360arguments again presented by tbe company and come to tbe same conclusion which we reached upon the hearing in banc. The petition for a rehearing is therefore denied. Rehearing Denied.