Bramwell v. Owen

• Decision Date: 22 October 1921
• Docket Number: L-8798.
• Citation: 276 F. 36
• Parties: BRAMWELL, State Superintendent of Banks, v. OWEN.
• Court: U.S. District Court — District of Oregon

276 F. 36

BRAMWELL, State Superintendent of Banks, v. OWEN.

No. L-8798.

United States District Court, D. Oregon.

October 22, 1921

G. M Roberts, of Medford, Or., for plaintiff.

Reames & Reames, of Medford, Or., for defendant.

WOLVERTON District Judge.

This cause is here by removal from the circuit court of the state of Oregon for Jackson county. The plaintiff has moved the court to remand the cause to the state court. The complaint was filed April 12, 1921, and on the same day the summons was delivered to the sheriff of Jackson county for service, and by him served within the county, upon the defendant personally, and in person.

On April 22, 1921, the defendant, appearing specially, moved in the state court to quash the service of summons, on the ground that he had been brought into the state from the state of Utah, by extradition proceedings, to answer in a criminal action instituted and then pending against him, by indictment charging him with aiding and abetting a cashier of a bank to injure and defraud the bank. This motion was brought on for hearing in due time, and, after consideration by the court was on May 14th denied. On May 19th plaintiff moved the court for an order of default and judgment against defendant.

On the same day the defendant interposed a motion for reargument of the motion to quash. This latter motion was allowed, and while it was pending, namely, on May 19th, the defendant filed his petition for removal of the cause to this court, and in pursuance thereof the removal was had. On June 17, 1921, the defendant, again appearing specially, moved in this court to quash the service of summons. The questions presented on the motion to remand arise on this record.

It is first insisted that the defendant failed to file his petition for removal within the time allowed to plead or answer to the complaint in the state court, and therefore that the cause should be remanded. To this the defendant makes answer that no valid service of summons has ever been had upon him, and the service being void, his time for pleading or answering to the complaint has not even begun to run.

The action is transitory in character, being for recovery upon two promissory notes, and for money had and received to defendant's use and benefit, and, under the Oregon statute (sections 44 and 45, L.O.L.), may be instituted and service had upon the defendant in the county where he resides or may be found. An action is deemed to have been commenced against a defendant when the complaint is filed and the summons served upon him; and, if served within the county where commenced, he is required to answer or plead to the complaint within 10 days, or, if in any other county in the state, within 20 days. Sections 14 and 52, L.O.L. An attempt to commence and action is the equivalent of commencement, when the complaint is filed and the summons delivered to the proper officer with intent that it shall be actually served. Section 15, L.O.L.

Waiving for the present the question whether or not the service of summons is void, we will inquire whether, within the federal removal statutes, the defendant was required, assuming it to be void, to answer or plead to the complaint filed herein. More than 10 days had expired between the time of the attempted service and the filing of the petition for removal.

If the service was good, there can be no doubt that the removal cannot be sustained. A void service is as if none had been had, and any judgment rendered by the court in the action against the defendant, unless he has appeared and voluntarily submitted himself to its jurisdiction, would be alike void and nugatory. The cause, however, had been commenced, and he had the right to appear generally or specially. He appeared specially, for testing the validity of the service. This gave the court no authority for rendering judgment against him, except to pass upon the motion to quash. The filing of the petition for removal was not the equivalent of a general appearance.

A defendant can never be required to answer or plead to a complaint under a void service of summons; otherwise it might result in the taking of his property without due process of law. He could stand mute, and let the plaintiff take his course, and yet the law would protect him against the further process of the court. Nor does the federal statute require him so to plead or answer as a condition to removal. Indeed, a general appearance would, in itself, defeat the removal. So we must conclude that the time in which a defendant is required to remove his case to the federal court, if he desires to do so, does not begin to run until he has been served with a summons, by a valid service thereof; that is to say, such a service as would require him to appear in the state court, in default of which a valid judgment could be rendered against him in the cause. As we have seen, however, the cause being pending, he had the right to appear generally or specially, and he had also the further right to remove the cause to this court. Donahue v. Calumet Fire Clay Co. (C.C.) 94 F. 23, 27; Tortat v. Hardin Min. & Mfg. Co. (C.C.) 111 F. 426; Sullivan v. Lloyd (D.C.) 213 F. 275.

It was suggested in argument that, the state court having passed upon the motion to quash the service, the effect of the removal would be to require this court to review the action of the state court, and that the federal court possesses no jurisdiction for that purpose. The state court having granted a reargument on the motion to quash, the case stands on the record as though that motion were still pending and undecided. There can be no valid reason...