Ford v. . Lumber Co.

Petition for removal to Circuit Court of the United States from Superior Court of Haywood County, his Honor, Judge Cline, presiding.

From an order denying the petition defendant appealed. The summons was returnable to September Term, 1910, at which term an order was made in this cause as follows: "Plaintiff allowed forty days to file complaint; defendant has forty days to file answer." The defendant did not except to this order and did not move to dismiss the action for failure to file complaint, as it had a right to do.

It may be, as contended by defendant, that a petition for removal need not be presented until the complaint is filed, and the record then discloses a removable controversy as to the sum demanded, but under our decisions the defendant has waived his right to remove and submitted itself to the jurisdiction of the court by not excepting to the order we have quoted.

By failing to except to it, the defendant is taken to have consented to it. Lewis v. Steamboat Co., 131 N.C. 653; Bryson v. R. R., 141 N.C. 594;Garrett v. Bear, 144 N.C. 26.

Where an order of reference is made in a cause, and it is not excepted to and the exception noted on the record, it is taken to be a reference by consent, upon the principle that "silence speaks consent," and a jury trial is thereby waived. Driller Co. v. Worth, 117 N.C. 515.

Upon same principle, when the defendant takes no exception (353) to the order extending the time within which to file complaint and answer, the order is a consent order and voluntary submission by defendant to the jurisdiction of the court and a waiver of a right to remove.

Affirmed.

Cited: Oettinger v. Livestock Co., 170 N.C. 153.