Allen v. Hatchett

• Decision Date: 26 January 1955
• Docket Number: 35509,Nos. 35435,No. 1,s. 35435,1
• Citation: 91 Ga.App. 571,86 S.E.2d 662
• Parties: Morris ALLEN v. J. O. HATCHETT et al. J. O. HATCHETT et al. v. Morris ALLEN
• Court: Georgia Court of Appeals

Page 662

86 S.E.2d 662

91 Ga.App. 571

Morris ALLEN v. J. O. HATCHETT et al.

J. O. HATCHETT et al. v. Morris ALLEN.

Nos. 35435, 35509.

Court of Appeals of Georgia, Division No. 1.

Jan. 26, 1955.

Rehearing Denied Feb. 28, 1955.

Syllabus by the Court.

1. When an action in a State court is removed to a Federal district court, the jurisdiction of the State court is suspended until the case is remanded to the State court, at which time the case resumes the status it occupied at the time of the removal. The case was not in default; therefore the court did not err in allowing the defensive pleadings to be filed.

2. The evidence did not authorize a finding that the defendants were negligent in any particular and the court did not err in awarding a nonsuit.

Morris Allen sued Jerry O. Hatchett and his employer, Hitchcock Corporation, for damanges arising out of a collision between the plaintiff's automobile and an automobile owned by Hitchcock Corporation and being operated by the defendant Hatchett, the collision allegedly being caused by the defendants' negligence. The action was brought in the Newton Superior Court, and nonresident service was perfected against the defendants. Without filing defensive pleadings the defendants removed the case to the United States District for the Northern District of Georgia on the ground of diversity of citizenship. By a consent order the case was remanded by the Federal court to the State court. Upon the case being remanded, the defendants moved the State court to allow them to pay all cost accruing in the case, to file defensive pleadings, to plead instanter and announce ready to proceed with the trial of the case. Over the objection of the plaintiff, the court granted the motion and allowed the defendants to file defensive pleadings. To this ruling the plaintiff excepts. On the trial of the case, at the close of the plaintiff's evidence, the court on motion awarded a nonsuit, and to this judgment the plaintiff excepts.

C. R. Vaughn, Jr., Conyers, D. D. Veal, Peter J. Rice, Eatonton, for plaintiff in error.

Carter, Latimer & Savell, A. Ed Lane, Jr., Atlanta, for defendant in error.

FELTON, Chief Judge.

1. The plaintiff in error contends that, since the case was remanded to the State superior court by consent order, the Federal court never gained jurisdiction and the jurisdiction of the State court was never suspended; that the case went into default, and that the court erred in allowing the defendants to file defensive pleadings, etc. To support this contention, the plaintiff in error cites Hunter v. Colquitt, 73 Ga. 44, 46. However, that case was rendered prior to the amendment of the 'Removal Act,' 28 U.S.C.A. § 72. The present case must be decided under the amendment. 28 U.S.C.A. § 1446. We think the question was properly resolved by the Supreme Court of Idaho in Hopson v. North American Ins. Co., 71 Idaho 461, 233 P.2d 799, 800, 25 A.L.R.2d 1040. For the benefit of the Bar, we quote in length from the Hopson case:

'It is urged by appellant that where the defendant does not make out a case for removal, the jurisdiction of the Federal Court does not attach and the State Court does not surrender its jurisdiction but may proceed with the case as if no application for removal had been made and in the instant case may order the entry of default for failure to answer or otherwise plead to the complaint within the time permitted by the statutes of this state and that defendant takes his chances when he attempts to remove a case not removable. Appellant's contention in this respect under 28 U.S.C.A. § 72, prior to amendment is supported by Morbeck v. Bradford-Kennedy Co., 19 Idaho 83, 113 P. 89; State v. American Surety Co., 26 Idaho 652, 145 P. 1097; Finney v. American Bonding Co., 13 Idaho 534, 90 P. 859, 91 P. 318; Mills v. American Bonding Co., 13 Idaho 556, 91 P. 381, and many cases from other jurisdictions. See 45 Am.Jur., Sec. 179, p. 934; Sec. 204, p. 950. Appellant urges that the amendment has resulted in no change in the law as announced in these cases; with this we cannot agree.

'All of these decisions were rendered under the 'Removal Act', 28 U.S.C.A. § 72, prior to its amendment effective May 24, 1949, 28 U.S.C.A. § 1446.

'In order to ascertain whether or not Congress intended to effect a change by the enactment of 28 U.S.C.A. § 1446 which would operate to void any proceedings taken in the State Court, pending the determination of the movability of the cause in the Federal Court even though it was ultimately determined that it was not in fact removable, we must look to the statute as amended, unaided by any decisions construing the amended statute, because counsel on neither side has called our attention to any case construing the statute since amended, nor have we been able to find any such case.

'The amendment of an existing act indicates that a change was intended. State ex rel. Wright v. Headrick, 65 Idaho 148, 139 P.2d 761; Stewart v. Common School Dist., 66 Idaho 118, 156 P.2d 194.

'It is provided under Sec. 72 in pertinent part as follows: 'Whenever any party entitled to remove any suit * * *, 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, * * * 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 * * * and shall make and file therewith a bond, * * * for paying all costs that may be awarded by the said district court if said district court shall hold that such suit was wrongfully or improperly removed thereto * * *. It shall then be the duty of the State court to accept said petition and bond and proceed no further in such suit. * * *'

'28 U.S.C.A. § 1446 provides in pertinent part as follows:

"(a) A defendant or defendants desiring to remove any civil action or criminal prosceution from a State court shall file in the district court of the United States for the district and division within which such action is pending a verified petition containing a short and plain statement of the facts which entitle him or them to removal together with a copy of all process, pleadings and orders served upon him or them in such action.

"(b) The petition for removal of a civil action or proceeding shall be filed within twenty days after the receipt by the defendant through service or otherwise, of a copy of the initial pleading setting forth the claim for relief upon which such action or proceeding is based, or within twenty days after the service of summons upon the defendant if such initial pleading has then been filed in court and is not required to be served on the defendant, whichever period is shorter. * * *

"(c) * * *

"(d) Each petition for removal of a civil action or proceeding, except a petition in behalf of the United States, shall be accompanied by a bond with good and sufficient surety conditioned that the defendant or defendants will pay all costs and disbursements incurred by reason of the removal proceedings should it be determined that the case was not removable or was improperly removed.

"(e) Promptly after the filing of such petition and bond the defendant or defendants shall give written notice thereof to all adverse parties and shall file a copy of the petition with the clerk of such State court, which shall effect the removal and the State court shall proceed no further unless and until the case is remanded.'

'Under the earlier Act, fortified by the decisions thereunder, if it was ultimately determined that the cause was not removable, that is, that the defendant was not entitled to remove it, the defendant could not protect his rights awaiting such determination without filing an appropriate appearance in the State court, a usual practice, Stat v. American Surety Co, supra; and perhaps by proceeding in both courts simultaneously until the question of removability had been determined. Metropoliten Casualty Ins. Co. v. Stevens, 312 U.S. 563, 61 S.Ct. 715, 717, 85 L.Ed. 1044.

'The import of the decisions under 28 U.S.C.A. § 72 is clear to the effect that the defendant when petitioning for removal must assume the consequences if the case is remanded and he does not preserve his rights in the State court, because as the Act has been construed by the courts if the case was remanded for want of jurisdiction, the Federal Court is regarded as never having acquired jurisdiction. Tracy Loan & Trust Co. v. Mutual Life Ins. Co., 79 Utah 33, 7 P.2d 279; the rule that such proceedings in a State court following a petition for removal are valid where the suit is not in fact removable is 'the logical corollary of the proposition that such proceedings are void if the cause was removable'. Metropolitan Casualty Co. v. Stevens, supra, and the cases therein cited. In that case as well as in the case of Yankaus v. Feltenstein, 244 U.S. 127, 37 S.Ct. 567, 61 L.Ed 1036, the clear import of each decision is to the effect that proceedings had in a State court, including the entry of default, while the petition for removal is pending in the Federal Court and before it is remanded, are valid if the cause is not in fact removable; in other words, if a party is entitled to remove a suit, (but not otherwise) and the procedural steps are taken, the State court shall proceed no further because jurisdiction has been moved to the Federal Court and should the State court proceed further, its acts in this respect would be void.

'In pointing out a better practice to be followed in the State courts under the Act prior to amendment, and at the same time recognizing the existence of the right to enter such default, the court in the Metropolitan case said: 'If, in cases like the present one, the state court is assured that the federal court will decide promptly the...