Burton v. Smith

• Decision Date: 21 April 1926
• Docket Number: 288.
• Citation: 132 S.E. 605,191 N.C. 599
• Parties: BURTON v. SMITH et al.
• Court: North Carolina Supreme Court

132 S.E. 605

191 N.C. 599

BURTON v. SMITH et al.

No. 288.

Supreme Court of North Carolina

April 21, 1926

Stacy C.J., dissenting.

Appeal from Superior Court, New Hanover County; Daniels, Judge.

Action by A. E. Burton against S. R. Smith and others in which default judgment was entered against the named defendant. From an order denying his motion for removal of the cause to the federal court, after setting aside default judgment, he appeals. Order reversed.

This action was begun in the superior court of New Hanover county on December 8, 1924, against defendant S. R. Smith, a nonresident, and his codefendants, some of whom are residents of the state of North Carolina. Summons, returnable to said court, was duly served on S. R. Smith by publication, as provided by C. S. § 484. Said service was completed on or before the return day, to wit, January 19, 1925. At February term, 1925, no answer having been filed to the complaint filed on December 8, 1924, judgment by default was duly rendered in favor of plaintiff and against said defendant, in accordance with the prayer of the complaint.

Thereafter defendant appeared, and upon affidavit duly filed in the cause moved that said judgment rendered by default be vacated and set aside, and that he be allowed to file answer to the complaint and make defense in said action according to the course and practice of the court. C. S. § 492. This motion was heard on September 28, 1925. The order made thereon is as follows:

"It is now ordered and adjudged by the court that said judgment entered at February term, 1925, be and the same is hereby vacated and set aside, and that said defendant S. R. Smith be allowed to file his answer to the complaint in said action, and that he be allowed 20 days from this date to file same."

Thereafter and within 20 days from the date of said order, to wit, on October 17, 1925, defendant, having caused notice to be served on plaintiff, and having filed petition and bond as required by section 29 of U.S. Jud. Code (U. S. Comp. Stat. § 1011), moved before the clerk of the superior court of New Hanover county (C. S. vol. 3, § 913 [b]) for an order of removal of this action from the superior court of New Hanover county to the District Court of the United States for the Eastern District of North Carolina for trial. Upon said motion, the clerk made the following order:

"This cause coming on for hearing before W. N. Harris, clerk of the superior court of New Hanover county, on the 17th day of October, A. D. 1925, on the petition of defendant S. R. Smith to remove this action as to said defendant to the United States District Court for and on the grounds recited in the petition, and being heard, and after hearing full argument of U. L. Spence, Esq., attorney for said defendant, S. R. Smith, in favor of granting said petition, and of A. G. Ricaud, Esq., attorney for plaintiff, against granting same, and it appearing to the court from the record in said cause and from the petition of removal that said defendant appeared through his attorney, U. L. Spence, before his honor, Frank A. Daniels, judge of the superior court, holding the courts of the Eighth judicial district at Burgaw on Monday, the 28th day of September, 1925, and obtained a judgment vacating and setting aside the judgment by default against the said defendant, S. R. Smith, entered at February term 1925, of the superior court of New Hanover county, and also asked for and obtained an extension of time to file an answer to the complaint in said cause, all of which fully appears in the judgment rendered therein by Judge Daniels, on the said 28th day of September, and that said defendant consented thereto and entered no exception or objection to the form thereof: The court now finds as a legal conclusion and decision that the appearance of said defendant S. R. Smith before his honor, Judge Daniels, at Burgaw, on the 28th day of September, was a general appearance and a voluntary submission to the jurisdiction of the court, and that he thereby waived and abandoned his right of removal to the United States District Court, if any such right he had. For the foregoing reasons, the petition of said defendant is denied."

From this order defendant appealed to the judge holding the next term of the superior court of New Hanover county. Upon the hearing of the appeal the order was affirmed. From judgment affirming the order of the clerk denying motion for removal, defendant appealed to the Supreme Court.

U. L. Spence and Thos. E. Bass, both of Carthage, for appellant.

C. D. Weeks and A. G. Ricaud, both of Wilmington, for appellee.

CONNOR J.

At the expiration of the time prescribed in the order for the publication of summons in this action, the court having found from the affidavit of the printer (C. S. § 489 [2]) that notice of the summons had been duly published, as required by C. S. § 485, the defendant S. R. Smith was then in court. The service of the summons was completed, and the superior court of New Hanover county had jurisdiction of defendant. C. S. § 487. Before rendering judgment by default, at February term, 1925, the court adjudged that the summons had been duly served. Hyman v. Jarnigan, 65 N.C. 96. The principle that a general appearance in an action or proceeding pending in a court of competent jurisdiction waives all defects or irregularities both as to summons and service is well established, and has been consistently enforced. C. S. § 490, and cases cited. It has no application, however, to the facts of this case, and affords no aid in the decision of the question presented by this appeal. The appearance of defendant to move, under C. S.§ 492, that the judgment rendered in this action against him be vacated and set aside, nothing else appearing, was an admission by him that the court had acquired jurisdiction by the publication of summons, as provided by statute. The appearance of a defendant in a suit in a state court, whether general or special, does not operate as a waiver of his right to remove the action to the federal court for trial. Goldey v. Morning News, 15 S.Ct. 559, 156 U.S. 518, 39 L.Ed. 517; Stevens v. Richardson (C. C.) 9 F. 191; Groton Bridge Co. v. American Bridge Co. (C. C.) 137 F. 284, 26 Ann. Cas. 1337, and note; 23 R. C. L. 739. Defendant in this action did not contend, at the time he made his motion, nor does he contend now, that there was any defect or irregularity in the summons or in its service upon him. Dailey Motor Co. v. Reaves, 114 S.E. 175, 184 N.C. 260; Wooten v. Cunningham, 88 S.E. 1, 171 N.C. 123; Barnhardt v. Drug Co., 104 S.E. 890, 180 N.C. 436. He contends that under the Constitution of the United States, and the statute duly enacted by Congress pursuant thereto, he has the right, at his election, to have this cause removed from the state to the federal court for trial; that he has neither lost nor waived this right.

The District Court of the United States for the Eastern District of North Carolina has jurisdiction of the action stated in the complaint in favor of plaintiff, a citizen of the state of North Carolina, and against the defendant, a citizen of the state of New York; the amount involved being in excess of the jurisdictional sum of $3,000. Swain v. Cooperage Co., 127 S.E. 538, 189 N.C. 582; U.S. Jud. Code, § 24; U.S. Comp. Stat. § 991. The jurisdiction of the superior court of this state is concurrent with that of the District Court of the United States-either court may try the action, and render judgment, finally determining the rights of the parties. The state court has jurisdiction of the defendant and of the subject-matter of the action, but must yield the right to try the action to the federal court, at defendant's election, unless defendant has lost or waived his right of removal.

Defendant has the right to have the action, commenced in the state court by plaintiff, removed to the District Court for trial provided the notice was given and the petition and bond were filed, as required by statute, prior to the expiration of the time within which he was required to file answer by statute of the state or rule of the court in which the action was pending. U.S. Jud. Code, § 29; U.S. Comp. Stat. § 1011. The right of removal may be lost by failure of defendant to give the notice and to file the petition and bond required within the time prescribed, or it may be waived by any act of defendant, from which it clearly appears that he has elected, not to avail himself of the right of removal to the federal court, but to join issue with the plaintiff for trial in the state court. Southern Pacific Co. v. Stewart, 38 S.Ct. 130, 245 U.S. 359, 62 L.Ed. 345; Murphy v. Stone, etc., Eng. Corp., 119 P. 717, 44 Mont. 146, Ann. Cas. 1913A, 1334, and note. If defendant, in an action pending in a state court, which is removable to the federal court, for trial, requests such court to grant an extension of time for filing his answer beyond the time prescribed by statute, or fixed by rule of court, and such request is granted, or if defendant accepts such extension of time, made upon motion of plaintiff or by the court upon its motion, he thereby waives his right of removal. 23 R. C. L. 614. A defendant who has invoked or who has acquiesced in the exercise by the state court of its discretionary power to grant him relief beyond his strict legal right, without objection and exception, is conclusively presumed to have elected not to avail himself of his legal right to the removal of the action to the federal court for trial. He has elected to try the issues in the state court. Patterson v. Lumber Co., 94 S.E. 692, 175 N.C. 90; Pruitt v. Power Co., 81 S.E. 624, 165 N.C. 416; Ford v. Lumber Co., 71 S.E. 439, 155 N.C. 352; Bryson v. Southern R. Co., 54 S.E. 434, 141...