Bolling v. MERCHANTS & BUSINESS MENS MUT. F. INS. CO.

• Citation: 39 F. Supp. 625
• Decision Date: 09 July 1941
• Docket Number: No. 10.,10.
• Court: U.S. District Court — Western District of Virginia
• Parties: BOLLING et al. v. MERCHANTS & BUSINESS MENS MUT. FIRE INS. CO.

39 F. Supp. 625

BOLLING et al. v. MERCHANTS & BUSINESS MENS MUT. FIRE INS. CO.

No. 10.

District Court, W. D. Virginia, at Big Stone Gap.

July 9, 1941.

R. R. Parker, of Appalachia, Va., for plaintiff.

John J. Wicker, Jr., of Richmond, Va., for defendant.

PAUL, District Judge.

This action was originally instituted in the Circuit Court of Wise County, Virginia, under the notice of motion statute (Va.Code § 6046) and was removed to this court by the defendant upon the ground of diversity of citizenship. The plaintiff has moved to remand upon the ground that the petition to remove was not filed in the state court within the time required by the Federal statute governing removal, 28 U.S.C.A. § 72. This statute provides that the petition for removal shall be filed in the state court: "* * * 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 the suit is brought to answer or plead to the declaration or complaint * * *".

The record of the proceeding in the state court shows that the notice of motion was returnable in that court on April 23, 1941; that the defendant did not plead nor appear on the return day and the case was placed on the trial docket and set for trial on May 5, 1941, being a day of the term which began on April 21, 1941. On May 1st, upon motion of the plaintiff, an order was entered requiring the defendant to appear and file a statement of its grounds of defense by 9 A. M. on May 3rd. The defendant did not file the statement of grounds of defense on May 3rd, but on May 5th, the day set for trial, filed its petition for removal, accompanied by the required bond. Upon this petition the state court issued its order of removal.

The sole question is whether the petition for removal was filed in time. The notice of motion statute, Va.Code, § 6046, provides a simple and informal practice, the application of which by the courts has been most liberal and free of technicality. Rule days have no applicability to proceedings by notice of motion and no office judgments are entered because of the failure of defendant to plead at any stage. The statute makes no provision as to the time when a defendant shall plead nor does it provide for any judgment by default or conditional judgment for failure to plead. The statute does provide that the defendant may make the same defenses as to an action at law brought by declaration or, if he choose, may file an informal writing setting up his grounds of defense, this being in lieu of a plea in bar; and it also provides that no plea in abatement shall be received after the defendant has demurred, pleaded in bar or filed his grounds of defense. But there is no provision as to when any of these defenses, either dilatory or to the merits, shall be filed. The case matures on the return day of the notice, on which day it is docketed; and the plaintiff, providing he is prepared to do so, may then and there on the return day prove his case and take judgment.

While there is no provision as to when a defendant must plead, it is generally accepted that he cannot plead prior to the return day for the reason that the case is not on the docket until then. Under this condition, it behooves a defendant to appear on the return day and plead in some form. Otherwise he risks the danger of having a judgment taken against him on that day. But if the court does not hear the case on the merits on the return day but sets it for trial at a later date, it is the general acceptation that the defendant has not lost his right to plead by failing to do so on the return day and that he may do so later, even up to and including the day of trial unless ordered by the court to plead at an earlier time. In actual practice, it most frequently happens that when the notice is docketed on the return day, or at some time between that day and the date of trial, the plaintiff obtains an order requiring the plea or grounds of defense to be filed at a named date prior to trial; this being done in order that he may know of the defense to be offered and that the issues may be defined prior to trial. The order requiring the filing of pleas or grounds of defense prior to trial is customarily granted and, while I know of no authority specifically so holding, it would seem to be a matter of right for the plaintiff to demand this. However, if the defendant does not plead on the return day and no order requiring him to plead is entered then or thereafter, it is generally held that he may plead at any time up to and including the day of trial and that he has a right to do so.

Because of the very informality of the procedure by notice of motion and the liberality of the trial courts in its operation very few questions of technical procedure have arisen requiring settlement by our highest state court and direct authority is lacking on the question of when a defendant is "required to plead" in a proceeding of this sort. The law on the subject is found in the custom and practice prevailing in the trial courts and the interpretation of the statute generally accepted and followed, rather than in the decided cases. Briefly stated, this custom-established law seems to be this: That a defendant may plead on the return day but his failure to do so does not in itself bar him from pleading later. That after maturity of the notice, the court may require the defendant to plead by a named date, which, if the court saw fit, might be the return day itself; and that if the defendant fail to plead...