Adams v. Puget Sound Traction, Light & Power Co.

• Decision Date: 03 September 1913
• Citation: 207 F. 205
• Court: U.S. District Court — Western District of Washington
• Parties: ADAMS v. PUGET SOUND TRACTION, LIGHT & POWER CO.

207 F. 205

ADAMS v. PUGET SOUND TRACTION, LIGHT & POWER CO.

United States District Court, W.D. Washington, Northern Division.

September 3, 1913

William M. Watson, of Seattle, for plaintiff.

James B. Howe and H. S. Elliott, both of Seattle, for defendant.

NETERER District Judge.

This is an action commenced in the state court by service of summons and complaint on May 1, 1913. Notice of intention to file petition for removal, together with petition and bond, were served upon counsel for plaintiff May 21st following. The petition and bond were filed on May 22d, and an order entered by the judge of the state court approving the bond and ordering removal of the cause. Motion is here made to remand on the ground that the petition was not filed in time. Section 29, c. 3, of the Judicial Code (Act of March 3, 1911 c. 231, 36 St. at L.), provides:

'Whenever any party entitled to remove any suit mentioned in the last preceding section, except suits removable on the ground of prejudice or local influence, may desire to remove such suit from a state court to the district court of the United States, he may make and file a petition, duly verified, in such suit in such 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 such suit is brought to answer or plead to the declaration or complaint of the plaintiff, for the removal of such suit into the district court to be held in the district where such suit is pending, and shall make and file therewith a bond, with good and sufficient surety, for his or their entering in such district court,' etc.

The underscored portion of the section is identical with a similar provision in the Acts of March 3, 1875, c. 137, Sec 3, 18 Stat. 470, p. 349, vol. 4, Fed. St. Annotated (U.S Comp. St. 1901, p. 510). Rem. & Bal. Annotated Codes and Statutes of Washington, Sec. 221, provides:

'The summons must be * * * directed to the defendant requiring him to answer * * * within twenty days after the service of the summons, exclusive of the day of service.'

Section 222 provides that the summons shall contain title of the cause, etc., a direction to the defendants to appear within 20 days after service of summons, exclusive of the day of service, and defend the action.

'In case of failure so to do judgment will be rendered * * * according to the demand of the complaint.'

Section 24, art. 4, Constitution of the state of Washington, provides:

'The judges of the superior courts shall, from time to time, establish uniform rules for the government of the superior courts.'

Rem. & Bal. Code, Sec. 280, provides:

'The court shall establish the rules prescribing the time in which pleadings subsequent to the complaint shall be filed.'

Rule 4 of the General Rules of the superior courts of Washington, adopted by the several superior court judges at a meeting held at Bellingham July 26, 1910, and which is one of the court rules of the court where the action was commenced, provides: 'A party may respond to any pleading at any time before a default is claimed. A default shall be deemed claimed whenever a motion therefor is filed, accompanied with the affidavit of the party or his attorney, claiming such default, that no appearance has been made in the action, but will not be granted against a party who has appeared in the action by attorney, until the motion has been served.'

The defendant has full 20 days to answer, and the time within which to exercise the right of removal by filing its petition is coextensive with the right to answer. On failure to answer the right of default inures to plaintiff. Does the failure to claim default by plaintiff enlarge the time to file such petition by virtue of court rule No. 4? Does this rule confer a right which extends the time to plead or answer until the default is claimed, and hence enlarge the time to file removal petition? Is the limitation of time in which removal petition may be filed a floating one resting upon the vigilance of counsel for plaintiff? It is clear that no right to answer, as distinguished from a privilege, is conferred by rule 4. The grace extended by it could be cut off at any moment. The law of the state of Washington required the defendant to plead on or before the 21st. The petition for removal can be filed 'any time before the defendant is by the laws of the state required * * * to answer. ' The state law required the defendant to answer and the federal statutes required it to file its petition for removal on or before May 21st. Court rule No. 4 does not enlarge the time within which to file removal petition. The right of removal is conferred by statute; it is not a floating privilege, depending upon any contingency, but is fixed by definite limit of time-- the time to answer.

'The statute is imperative that the application to remove must be made when the plea is due, and, because the plaintiff in error does not take advantage of his right to take judgment by default, it cannot be properly held that he thereby extends the time for removal. ' Kansas City R. Co. v. Daughtry, 138 U.S. 298, 303, 11 Sup.Ct. 306, 308 (34 L.Ed. 963).

Justice Gray, speaking for the Supreme Court in Martin v. Railroad Co., 151 U.S. 673, 14 Sup.Ct. 533, 38 L.Ed. 311, says:

'The Judiciary Act of September 24, 1789, c. 20, Sec. 12, required a petition for removal of a case from a state court into the Circuit Court of the United States to be filed by the defendant 'at the time of entering his appearance in such state court.' 1 Stat. 79. The recent acts of Congress have tended more and more to contract the jurisdiction of the courts of the United States, which had been enlarged by

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