Arrigo v. Commonwealth Casualty Co.

• Decision Date: 27 May 1930
• Docket Number: No. 4313.,4313.
• Citation: 41 F.2d 817
• Parties: ARRIGO v. COMMONWEALTH CASUALTY CO.
• Court: U.S. District Court — District of Maryland

41 F.2d 817 (1930)

ARRIGO v.COMMONWEALTH CASUALTY CO.

No. 4313.

District Court, D. Maryland.

May 27, 1930.

Herbert R. O'Conor, Charles C. DiPaula, and J. Cookman Boyd, all of Baltimore, Md., for plaintiff.

Foster H. Fanseen and Edward L. Ward, both of Baltimore, Md., for defendant.

WILLIAM C. COLEMAN, District Judge.

The sole question here involved is whether this court should grant the plaintiff's motion to remand to the court of common pleas of Baltimore city this suit which plaintiff there instituted against defendant under an automobile accident insurance policy, and which was removed to this court pursuant to petition filed in, and order passed by, the court of common pleas on April 26, 1930.More specifically, the question is whether defendant's petition to remove the case from the court of common pleas to this court has been filed too late, within the meaning of section 29 of the Judicial Code(28 USCA § 72) providing for removal of suits of this kind where the jurisdictional requirements are satisfied.The pertinent part of this section is as follows (28 USCA § 72): "Whenever any party entitled to remove any suit mentioned in section 71 of this title, 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 courtat 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. * * *"(Italics inserted.)

The following dates are material to a determination of the precise question.Plaintiff's suit was originally instituted in the court of common pleas of Baltimore city on January 15, 1930.Under the rules of that court, the defendant was required to plead within thirty days from the return day to which he was summoned, which return day was February 10, 1930.Before such time expired, that is, on March 8, 1930, the defendant demurred to plaintiff's declaration; argument on the demurrer was heard on April 22, 1930; the demurrer was overruled, and on the same day defendant's time for pleading was extended fifteen days from that date.Within that extension the petition for removal to this court was filed and granted, namely, on April 26, 1930.

By his motion, plaintiff contends that whereas defendant's petition for removal was filed before the extended time within which defendant was required to plead had expired, such does not satisfy the provision of the Judicial Code above quoted, because, as plaintiff contends, the requirement that the motion shall be filed 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," means any time prior to the time when defendant is required to make any defense whatsoever in the state court.

For a complete understanding of the circumstances surrounding the present case, it is necessary to refer to an additional rule of the court of common pleas of Baltimore City(No. 14), which provides that "when a demurrer is overruled, a judgment by default shall be entered against the party demurring, unless he shall plead over within a time to be fixed by the Court. * * *"

On the authority of two decisions of the Supreme Court, Martin v. Baltimore & Ohio R. Co., 151 U. S. 673, 14 S. Ct. 533, 38 L. Ed. 311, andGoldey v. Morning News, 156 U. S. 518, 15 S. Ct. 559, 39 L. Ed. 517, the court concludes that plaintiff's motion must be granted.In the first of these cases, decided in 1894, the court construed the precise language of the removal statute now in issue, not, to be sure, under the same state of facts, because in that case the petition for removal was filed at or before the time when in the state courtthe defendant was required by the state law to answer or plead to the merits of the case, but after the time when he was required to plead to the jurisdiction of the court or in abatement of the writ.It is further true that the Supreme Court held that plaintiff had waived his right to object to the removal because the objection was not taken until after the case had proceeded to trial in the federal court.Nevertheless, the Supreme Court, in the course of its opinion, held that defendant's petition for removal was filed too late in the state court.After reciting the exact time as above set forth when defendant's petition for removal was filed, the court said, pages 686, 687 of 151 U. S., 14 S. Ct. 533, 538:

"Was this a compliance with the provision of the act of Congress of 1887, which defines the time of filing a petition for removal in the state court?We are of opinion that it was not, for more than one reason.This provision allows the petition for removal to be filed at or before the time when the defendant is required by the local law or rule of court`to answer or plead to the declaration or complaint.'These words make no distinction between different kinds of answers or pleas; and all pleas or answers of the defendant, whether in matter of law, by demurrer, or in matter of fact, either by dilatory plea to the jurisdiction of the court or in suspension or abatement of the particular suit, or by plea in bar of the whole right of action, are said, in the standard books on pleading, to `oppose or answer' the declaration or complaint which the defendant is summoned to meet.Steph.Pl. (1st Am. Ed.) 60, 62, 63, 70, 71, 239; Lawes, Pl. 36.The judiciary act of September 24, 1789, c. 20, § 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 intermediate acts, and to restrict it more nearly within the limits of the earliest statute.Pullman Car Co. v. Speck, 113 U. S. 84, 5 S. Ct. 374, 28 L. Ed. 925;Smith v. Lyon, 133 U. S. 315, 320, 10 S. Ct. 303, 33 L. Ed. 635;In re Pennsylvania Co., 137 U. S. 451, 454, 11 S. Ct. 141, 34 L. Ed. 738;Fisk v. Henarie, 142 U. S. 459, 46712 S. Ct. 207, 35 L. Ed. 1080;Shaw v. Quincy Mining Co., 145 U. S. 444, 449, 12 S. Ct. 935, 36 L. Ed. 768.

"Construing the provision now in question, having regard to the natural meaning of its language, and to the history of the legislation upon this subject, the only reasonable inference is that congress contemplated that the petition for removal should be filed in the state court as soon as the defendant was required to make any defense whatever in that court, so that, if the case should be removed, the validity of any and all of his defenses should be tried and determined in the circuit court of the United States.

"As the petition for the removal of this case into the circuit court of the United States was not filed in the state court within the time mentioned in the act of congress, it would follow that, if a motion to remand upon that ground had been made promptly, and denied, the judgment of the circuit court of the United States must have been reversed, with directions to remand the case to the state court.Edrington v. Jefferson, 111 U. S. 770, 4 S. Ct. 683, 28 L. Ed. 594;Baltimore & Ohio Railroad v. Burns, 124 U. S. 165, 8 S. Ct. 421, 31 L. Ed. 333."(Italics inserted.)

The case of Goldey v....