Briggs v. Miami Window Corporation, Civ. A. No. 1287.

• Decision Date: 28 June 1956
• Docket Number: Civ. A. No. 1287.
• Parties: Louis BRIGGS, d/b/a Louis Briggs Construction Company, Plaintiff, v. MIAMI WINDOW CORPORATION, Defendant.
• Court: U.S. District Court — Middle District of Georgia

158 F. Supp. 229

Louis BRIGGS, d/b/a Louis Briggs Construction Company, Plaintiff, v. MIAMI WINDOW CORPORATION, Defendant.

Civ. A. No. 1287.

United States District Court M. D. Georgia, Macon Division.

June 28, 1956.

Harris, Russell, Weaver & Watkins, Macon, Ga., for plaintiff.

Jones, Sparks, Benton & Cork, Macon, Ga., for defendant.

BOOTLE, District Judge.

The plaintiff moves to remand this cause to the Superior Court of Bibb County, Georgia upon the grounds first, that the removal to this Court was not timely, and, second, that the defendant had waived its right to remove.

Plaintiff swore out an attachment against the defendant in the Civil Court of Bibb County on December 2, 1955, and caused a summons of garnishment to be served promptly upon a garnishee in Fulton County, Georgia. Thereupon counsel for defendant conferred with counsel for plaintiff and it was agreed that plaintiff would dismiss the garnishment summons on condition that defendant would make a general appearance in Bibb Superior Court, the Court to which the attachment was returnable, by filing an answer to plaintiff's declaration in attachment after the same was filed in said Court. In accordance with that agreement, the garnishment summons was dismissed and plaintiff's declaration in attachment was filed on January 20, 1956, setting forth plaintiff's claim against defendant in an amount in excess of $3,000 exclusive of interest and costs, and plaintiff's counsel then mailed three copies of this declaration in attachment to defendant's counsel. About March 13, 1956, it was agreed between counsel for plaintiff and defendant that defendant's answer would be filed prior to April 2, 1956 so that the case would be triable in Bibb Superior Court at the April, 1956 term.

Prior to the date agreed upon, and on March 21, 1956, the defendant filed in Bibb Superior Court its pleadings consisting of: (1) a plea of non-joinder; (2) a plea in abatement asking that said action be stayed and abated pending the final outcome of a suit filed in this Court on March 1, 1956 by the defendant and by Southern Supply Manufacturing Co., Inc. against this plaintiff and against Pacific National Fire Insurance Company; (3) its demurrer to plaintiff's declaration in attachment, and (4) its answer and cross-action, in which cross-action the defendant prayed for a judgment against plaintiff in the sum of $7,534.32, the defendant's prayer on its cross-action being:

"that in the event this proceeding is adjudicated on the merits by this Court the prayers of the petition be denied and that judgment be granted in favor of defendant for its use and the use of Southern Manufacturing Company, Inc., in the amount of $7,534.32, besides interest at 7% per annum from March 1, 1955; that defendant be granted such other and further relief as to the Court which (sic) seem just and proper."

The case was, by defendant, removed to this Court on April 2, 1956, within twenty days after defendant filed its answer thereby making its general appearance in Bibb Superior Court but more than twenty days after plaintiff's declaration in attachment was filed in said Court and copies mailed to defendant's counsel. This motion to remand followed on April 10, 1956.

As this Court sees it, the defendant, by filing its plea in abatement and its cross-action in the State Court, waived its right to remove the case to this Court. The authorities read one way on this question where the cross-action or counter-claim is filed voluntarily by the defendant and is not required by the State law to be filed in order to preserve the defendant's rights later or elsewhere to assert his counter-claim.

"The rule that a nonresident defendant by voluntarily setting up a counter-claim when sued in a State court submits to the jurisdiction of the court, is likewise well established. See, Haney v. Wilcheck, D.C.W. D.Va., 38 F.Supp. 345, 354, for a collection of authorities." Wheatley v. Martin, D.C.W.D.Ark., 62 F.Supp. 109, 115(9).

"So far as defendants plea is confined to a mere denial of the plaintiffs claim, we will assume that he waives no right by filing it simultaneously with the petition to remove. Brisenden v. Chamberlain, C.C.S.C., 53 F. 307, 311, 312; Champlain Const. Co. v. O'Brien, C.C.Vt., 104 F. 930. But this is an entirely different situation from that

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