may receive evidence by deposition or otherwise, or may appoint an auditor to hear the evidence and report to the court.'
On April 12, 1961, the Sheriff filed in his office the schedule of distribution. On April 14, 1961, a copy of this schedule was received by the United States. On April 21, 1961, the United States filed with the State court, not the Sheriff, timely exceptions to the schedule of distribution. On April 28, 1961, the Sheriff filed with the State court his schedule of distribution.
It is apparent that until the Sheriff filed his schedule of distribution, and the United States took exception to the schedule, there was no civil action or proceeding pending which would be removable under 1446(b). To constitute a civil action or proceeding, the intervention of a court is required. Lummus Company v. Commonwealth Oil Refining Co., S.D.N.Y.1961, 195 F.Supp. 47, 55. Prior to the filing of the schedule there was the posibility that the Sheriff would satisfy in full the lien of the United States. Moreover, even if the United States were to receive less than full satisfaction, until exceptions were filed, it was possible that the United States would agree with the proposed distribution. The Sheriff's schedule of distribution, of which the United States had notice and to which it filed exceptions, was a sufficient paper of record from the filing of which the twenty day period began to run. Putterman v. Daveler, D.Del.1958, 169 F.Supp. 125, 129. The United States was aware that the priority of federal tax liens was in dispute and that it had twenty days in which to file the petition for removal. Its failure to do so makes the petition for removal untimely.
This result is not altered by the fact that the exceptions were filed with the State court prior to the schedule of distribution. Neither the United States nor Emporium has questioned the order in which the documents were filed. A filing of papers out of time is generally a formal defect to which the parties may waive objection. Albertson v. Federal Communications Commission, 1950, 87 U.S.App.D.C. 39, 182 F.2d 397, 401; 71 C.J.S. Pleading 562, 564, 571. If the United States had filed the exceptions with the Sheriff, as provided by Pa.R.C.P. No. 3136, the schedule of distribution and the exceptions would have been filed with the court at the same time. By bringing this matter before the State court, the Sheriff sought to have his proposed distribution confirmed and in effect requested relief against the claims of the United States. City of New York v. Evigo Corp., supra. See also, Chicago, Rock Island and Pacific Railroad Co. v. Stude, supra; Oregon v. Hitchcock, 1906, 202 U.S. 60, 69, 26 S. Ct. 568, 50 L. Ed. 935.
The United States argues that if this proceeding can be said to come within the purview of 2410 (formerly 901, 902, 904 and 905) of the United States Code Annotated, then the United States has sixty days in which to answer, and under 1444 (formerly 903) and 1446 (formerly 72, 74, 76) the United States has an additional twenty days after the time allowed to answer in which to petition for removal. Eighty days from the time that the dispute arose on April 21, 1961, would permit until July 10, 1961, to file the petition. It is argued, therefore, that the petition filed on July 5, 1961, was timely. In support of this rationale, the United States relies on Miners Savings Bank of Pittston, Pa. v. United States, M.D.Pa.1945, 6 F.Supp. 305.
Assuming that this case comes within the purview of 2410, the Government's argument may be disposed of by noting the statutory changes in the removal procedure. When the Miners Savings Bank case was decided, former 902, 903 and 72 applied to actions affecting property on which the United States had a lien, and the procedure to remove such actions from the state courts to the federal courts. Former 902 and 903 specifically provided that the United States had sixty days in which to answer or plead in such actions and that a petition for removal could be filed at any time before the expiration of thirty days after the time allowed to the United States to answer. The Miners Savings Bank case held that in accordance with the clear language of 902 and 903 the United States had ninety days in which to initiate removal proceedings.
This practice has been changed. Successor 2410, 1444 and 1446(b) make no time exceptions in which removal proceedings by the United States are to be initiated. While under former 72 the time for removal for all parties was geared to the time within which the defendant was required to plead, the time for removal under 1446(b) is geared essentially to the initiation of the state court action or to steps taken thereafter at the instance of the plaintiff. As stated in 'Moore's Commentary on the U.S. Judicial Code,' 1949 Ed., at page 260,
'Under the prior practice the United States had sixty days after service within which to answer and an additional thirty days thereafter within which to remove -- a total of ninety days. While under 2410 the United States still is given sixty days within which to answer, 1446(b), governing the time for removal, is not geared to the time allowed to answer, but instead it provides for removal 'within twenty days after the receipt * * * of the initial pleading * * * or * * * the service of summons * * * whichever period is shorter;' and it makes no exception for the United States. The only exception made for the United States is that it need not give bond.'
This is consistent with the policy and purpose of Congress to effect removals as early as possible and avoid unnecessary delays. Gilardi v. Atchison, Topeka and Santa Fe Railway Co., N.D.Ill.1960, 189 F.Supp. 82. See also, Moore's Commentary on the U.S. Judicial Code, supra, page 273.
Assuming, therefore, that this action comes within the purview of 2410, the petition is not timely since it was not filed within twenty days after the State court proceeding was commenced.
It is unnecessary to consider Emporium's additional argument that the United States waived its right to remove, and the arguments of Emporium and the Government as to whether the removal, if granted, would cause a multiplicity of suits.
An order will be entered remanding this case to the State court.
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