Wilson v. Winchester & P.R. Co.
| Decision Date | 02 July 1897 |
| Citation | 82 F. 15 |
| Court | Circuit Court of Virginia |
| Parties | WILSON et al. v. WINCHESTER & P.R. CO. et al. [1] |
Trapnell & McDonald, for complainants.
George Baylor, for Winchester & P.R. Co.
J. A Hutchinson and J. Bassel, for Baltimore & & O.R. Co.
This case is now heard upon a motion to remand it to the court from which it was removed, and that is the only question now to be considered. It appears from the record that a summons issued from the clerk's office of the circuit court of Jefferson county, W. Va., against the defendants, on the 27th day of October, 1893, requiring them 'to answer on the first Monday in next month a bill in chancery to be exhibited against them' by the plaintiffs in this action. It does not appear from the record when the bill was filed, except from a statement in the petition that it was filed at the following November rules. When the bill was filed, the plaintiffs were entitled to a rule to plead or reply as the case then stood (chapter 125, Sec. 5, Code W. Va.); but the record does not disclose that the plaintiffs took any such rule, nor does it appear that any step was taken by the plaintiffs to mature their action for hearing beyond the mere filing of their bill at November rules. The statute of West Virginia provides that, after the suit has been brought 'that if the defendant fails to appear at the rule day at which the process against him is returned executed, * * * the plaintiff, if he has filed his declaration or bill, may have a conditional judgment or decree nisi as to such defendant ' Code W.Va. c. 125, Sec. 44. No decree nisi was taken so far as the record discloses, the purpose of which is to notify the defendants that, unless they appear and plead at the next rules, 'the bill shall be entered as taken for confessed. ' Id. The result of this neglect kept the case open until the next rules, and left the plaintiffs in the same condition as if they had failed to file their bill. This omission upon the part of the plaintiffs to avail themselves of their right to take a decree nisi furnished the defendants with the opportunity of tendering any defense they might wish to make at December rules, for the reason that under the practice in this state they were not required to plead until the decree nisi was taken, and, as no such order was given at November rules, they were in time to plead at December rules. At the December rules the defendants filed their petition for removal, and subsequently the case was docketed in this court. As there was no necessity for the defendants to do anything to protect their rights until the decree nisi had been taken, it would seem that when they filed their petition at December rules they were in time. But it is insisted that under the act of congress passed in 1888 the defendants were required to file their petition at the rules to which the summons was returnable, and, not having done so, that they lost their right of removal. To sustain this position the case of Martin's Adm'r v. Railroad Co., 151 U.S. 691, 14 S.Ct. 533, is cited. I confess that this case somewhat surprised me when I first read it, and ever since I have entertained grave doubts as to the correctness of the construction claimed for it; and I may add that in this conclusion I am supported, not only by the views of some of my brothers in this circuit, but by a judicial construction of the act in question. Mahoney v. Association, 70 F. 513. I do not admit that the act is susceptible of the construction is supposed to have been given it by the supreme court in the case cited. I have the greatest respect for that tribunal, and, however much I might be inclined to differ with its conclusion in any case where the questions ruled were raised by the pleadings, still I would feel it to be my duty, as it would be my pleasure, to cheerfully acquiesce; but still, if I am mistaken as to what the conclusion of the court was in the case cited, I submit that, where the record not only shows that there was no plea filed to the jurisdiction of the court, but that it clearly appears from it that no objection to the removal was made either in the state court or in the circuit court of the United States, and that the court incidentally passed upon the question of removal, not strictly raised by the pleadings before it, then I will be excused if I treat its conclusions as 'obiter,'-- a mere dictum, by which I am not bound.
It will be noticed that the act requires any party who desires to remove a case from the state court to the federal court to file his petition in the case 'at the time, or any time before, the defendant is required by the laws of the state or the rule of the state court in which suit is brought to answer or plead to the declaration or complaint of the plaintiff.' 24 Stat. 554. Under the decision of Martin's Adm'r v. Railroad Co., it is claimed that the petition must be filed at the rules to which the summons is returnable, which is the first rule day. If such is the conclusion of the court in that case, with great deference I think it is a misconception of the act. As I have said before, I do not understand that I am bound by its reasoning and I trust that I will be excused if I venture to differ with the learned judge who . It will be observed that the act requires the party to file his petition 'when, by the laws of the state, or a rule of the court in which the suit is brought,' he is required to answer or plead to the declaration or complaint of the plaintiff, and not when he might make a defense to the writ or summons. It must be apparent to the legal mind that when congress employed the words 'declaration' and 'complaint' in the act they were used in a legal sense, and not as synonymous with the word 'writ' or 'summons,' which is, at common law, the process to commence the suit, and is the first step taken to bring the party sued before the court, while the declaration or complaint is necessarily the second step, which manifests the cause of action, and sets out a narrative of the case; and this must be true where the practice exists by commencing a suit by petition. The act does not, in terms, describe the nature or character of the plea or answer to be filed to the 'declaration or complaint,' manifestly for the reason that the practice in the states of the Union is not uniform. I must presume that congre...
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