Baumgardner v. Bono Fertilizer Co.

• Decision Date: 20 October 1893
• Citation: 58 F. 1
• Parties: BAUMGARDNER v. BONO FERTILIZER CO. et al., (two cases.)
• Court: U.S. Court of Appeals — Fourth Circuit

58 F. 1

BAUMGARDNER v. BONO FERTILIZER CO. et al., (two cases.)

United States Circuit Court, W.D. Virginia.

October 20, 1893

Statement by PAUL, District Judge:

These cases were removed into this court from the circuit court of Wythe county, Va., by an order of that court entered at its February term, 1893. The actions were brought on the 18th day of April, 1891, and the declarations filed at first July rules, 1891. On the 18th day of April, 1891, what purported to be an order of publication was made in one of the cases which was the only process or notice issued against the defendants, or any of them, all of whom were nonresidents of the state of Virginia. At the September term, 1891, of the circuit court of Wythe county, there being no appearance on the part of the defendants, or any of them, juries were impaneled, verdicts rendered, and judgments entered for $5,000 in each case. At the September term, 1892, of the circuit court of Wythe county the defendants filed a petition therein, praying that these cases be reopened, and the judgments expunged from the record, on the following grounds 'First. Because more than one month had elapsed after the return day of the process executed without the declaration being filed, when it was the duty of the clerk to enter the suits dismissed, ipso facto, and therefore the cases were improperly on the docket at the September term, 1892. The declarations were not filed until the first July rules, 1891 when by the order of publication they ought to have been filed within four weeks from the 18th of April, 1891. Second. Because your petitioners being nonresidents of the commonwealth of Virginia, and not being served with process in the state, or in Wythe county or anywhere, the so-called 'judgments' against them were nullities, and are void.' Thereupon the court entered an order setting aside the judgments entered at the September term, 1891, but refused to dismiss the suits, holding that there had been a valid execution of the orders of publication in the cases; that the declarations had been properly filed therein, and that, after the institution of the suits, and since the rendition of the judgments therein, the plaintiff had filed proper affidavits, and sued out attachments, in each of the suits; that said attachments had been duly executed on one R. W. Price, in Wythe county, a debtor of the defendants, and that said Price had that day appeared and answered the attachments, acknowledging himself indebted to one of the defendants, to wit, the Bono Fertilizer Company, in the sum of $167, with interest thereon from May 1, 1891. It further appears from the papers in these cases that after the rendition of the judgments at the September term, 1891, of the circuit court of Wythe county, what purported to be attachments were issued and levied on certain real estate in the city of Bristol as the property of J. Marshall Smith, one of the defendants. The order of the court also gave leave to the petitioners to plead to both of said actions if they desired to do so, and the order then proceeds as follows: 'And thereupon, this day, again came the defendants, by their attorney, and moved the court to dismiss the said actions on the ground that the petitioners, and each of them, are nonresidents of the commonwealth of Virginia, and that no service of process had been had on either of said petitioners in the commonwealth of Virginia or in Wythe county; said counsel in open court stating that he only appeared for the purpose of raising the question of jurisdiction. On consideration whereof the court overruled said motion to dismiss, to which action of the court the petitioners excepted, and tendered their bill of exceptions.' And the cases were continued until the February term, 1893, of the court, whereupon the circuit court of Wythe county, Va., ordered the removal of the cases into this court.

Walker & Caldwell and Blair & Blair, for plaintiff.

W. S. Poage, for defendants.

PAUL District Judge, (after stating the facts).

The plaintiff contends that these cases were improperly removed into this court, because----

First. The petition for removal was not filed 'before the defendants were required by the laws of the state of Virginia, or the rule of the state court, to answer or plead to the declaration, or complaint, of the plaintiff,' as required by section 1 of the act of congress of March 3 1887, as corrected by the act of August 13, 1888. An examination of the record shows that there was no time, from the institution of these actions to the time when the application for removal into this court was made, at which the defendants were required to plead to the plaintiff's declaration. There had never been any proper process served on the defendants, or any of them. It is not claimed that there had ever been any...