Ardison v. Villa, 5611.
| Decision Date | 25 September 1957 |
| Docket Number | No. 5611.,5611. |
| Citation | 248 F.2d 226 |
| Parties | H. B. ARDISON and Johnnie Wilson, Appellants, v. Usbaldo O. VILLA, Appellee. |
| Court | U.S. Court of Appeals — Tenth Circuit |
Kenneth N. Kripke, Denver, Colo. (Robert E. McLean, Denver, Colo., on the brief), for appellants.
William K. Ris, Denver, Colo., for appellees.
Before MURRAH, PICKETT and LEWIS, Circuit Judges.
The defendant-appellee removed this action from the Colorado District Court to the Federal District Court of that State for diversity of citizenship and requisite amount in controversy. The plaintiff-appellants moved to remand for untimely filing of the petition for removal. The motion was denied, and the trial of the case on its merits went against the plaintiffs, whereupon they renewed their motion to remand for the same reason. The trial court overruled it and the appellants have appealed, assigning only the refusal of the court to remand. If the time in which to remove the proceedings commenced to run on October 7, 1955, when the state court summons was served, the petition for removal came too late. If, however, as the trial court held, the time commenced on the date of receipt of the complaint by the defendant on October 17, 1957, the removal was timely and the judgment should be affirmed.
Title 28 U.S.C. § 1446(b), as amended May 24, 1949, 63 Stat. 101, provides that a petition for removal of a civil action "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." If the summons which was served on October 7, 1955, can be said to be an "initial pleading setting forth the claim for relief upon which such action or proceeding is based", the time for removal commenced to run on that date.
Rule 3(a) of the Colorado Rules of Civil Procedure provides that * * *" Rule 4(c) provides in material part that "* * * If the summons be served without a copy of the complaint * * * the summons shall briefly state the sum of money or other relief demanded. * * *" And, Rule 7(a) provides:
We agree with the trial court that the summons was not an initial pleading within the meaning of the federal removal statute. The manifest purpose of starting the period for removal from the date of the service of the "initial pleading" is to enable the defendant to intelligently ascertain removability from the face of such initial pleading, so that in his petition for removal, he can make a "* * * short and plain statement of the facts which entitle him or them to removal * * *" as required in 28 U.S.C....
To continue reading
Request your trial
-
Kerr v. Holland America-Line Westours, Inc.
...pleading must be one from which the defendant is able to intelligently ascertain the removability of the action.5 See Ardison v. Villa, 248 F.2d 226, 227 (10th Cir.1957). See also, Tyler v. Prudential Ins. Co., supra; Wright, Miller, and Cooper, Federal Practice and Procedure: Jurisdiction ......
-
Rowe v. Marder
...that, by the terms of the statute, the issue is not what the defendant knew, but what the relevant document said. See Ardison v. Villa, 248 F.2d 226 (10th Cir.1957); Universal Motors Group of Companies, Inc. v. Wilkerson, 674 F.Supp. 1108, 1111-12 (S.D.N.Y.1987). Where the language of a sta......
-
Whitaker v. American Telecasting Inc.
...instead focus on whether the content of the document satisfies the conditions of the federal removal statute.")(citing Ardison v. Villa, 248 F.2d 226 (10th Cir. 1957)). We therefore conclude that a summons with notice may serve as an initial pleading under section 2. Arguments Not Raised In......
-
Ashenden v. Lloyd's of London, 96 C 0852.
...U.S.C. § 1446(b) (1996); Roe v. O'Donohue, 38 F.3d 298, 303 (7th Cir.1994) (citing legislative history of § 1446(b) and Ardison v. Villa, 248 F.2d 226 (10th Cir.1957)). 2 The insurance syndicates that operate within Lloyd's of London, which are discussed below, have been determined to be un......