Chiatovich v. Hanchett

• Decision Date: 25 January 1897
• Citation: 78 F. 193
• Parties: CHIATOVICH v. HANCHETT et al.
• Court: U.S. District Court — District of Nevada

78 F. 193

CHIATOVICH v. HANCHETT et al.

United States Circuit Court, D. Nevada.

January 25, 1897

M. A Murphy, for plaintiff.

Torreyson & Summerfield, for defendants.

HAWLEY District Judge (orally).

This is an action of libel, and was brought in the district court of Esmeralda county, Nev. The complaint was filed August 29 1896. Summons was served on L. E. Hanchett August 29, 1896. On September 5, 1896, the district judge, for good cause shown, extended the time 'to plead in the above-entitled action' to September 30, 1896. On September 26, 1896 Messrs. Torreyson & Summerfield entered their appearance in said action on behalf of the defendant L. J. Hanchett, and accepted 'the time specified in the stipulation herein on file in which to plead to the complaint in said action. ' The terms of the stipulation referred to were 'that the above-named defendants L. J. Hanchett and L. E. Hanchett shall have to and including the 15th day of October, 1896, in which to plead to plaintiff's complaint in the above-entitled action. ' On October 14, 1896, the defendants, by their attorneys, appeared in the district court solely for the purpose of applying to the court for an order removing the cause to the circuit court of the United States. The petition for removal was made upon the ground that the plaintiff was at the time of the commencement of the action, and still is, a citizen and resident of the state of Nevada, and that the defendants were at that time, and still are, citizens and residents of the state of California. The district court, upon the facts set out in the petition, the giving of a proper bond, etc., made an order removing said cause to this court.

The plaintiff moves to remand the cause upon several grounds: (1) That this court has no jurisdiction; (2) that the action was improperly removed; (3) that the facts stated in the petition are not sufficient to entitle defendants to remove the cause; (4) that the time for the defendants to answer in the state court had expired before the petition for removal was filed; (5) that no notice of the filing of the petition for removal was served upon the plaintiff; (6) that defendant L. E. Hanchett was at the time of the commencement of the action, and ever since has been, and still is, a resident and citizen of the state of Nevada; (7) that defendants have not complied with rule 79 of this court requiring notice to be served on the plaintiff of the filing of the transcript from the state court.

The preliminary objections to the petition and manner of removal will first be noticed.

1. The petition for removal upon its face clearly states sufficient facts to justify the order made by the district court.

2. There is no statute of the United States, nor any rule of practice of this court, which required the defendants to give notice to the plaintiff of the filing of the petition for removal. In Fisk v. Railroad Co., 8 Blatchf. 243, 247, Fed.Cas.No. 4,828, the court said:

'The learned counsel for the plaintiff seem to suppose that the solicitor is entitled to notice of the time and place of the presenting of the petition, but this is an error. The act prescribes no such practice, and it is otherwise under all the previous statutes providing for removals. No affidavits can be read before the state court in opposition. The application on the petition is ex parte, and depends upon the papers upon which it is founded, and, if they are regular, and conform to the requirements of the statute, the court has no discretion. The act is peremptory.'

To the same effect, see Stevens v. Richardson, 9 Fed. 191, 194; Whelan v. Railroad Co., 35 F. 849, 865; Strasburger v. Beecher, 44 F. 213.

In reply to plaintiff's contention that it was the duty of the state court, under the rules of practice in the said court, to require the notice to be given, it is enough to say that the right to the removal of the cause is one conferred by acts of congress, and does not in any manner depend upon the action of the state court. Fisk v. Railroad Co., 6 Blatchf. 362, Fed.Cas.No. 4,827; Hatch v. Railroad Co., 6 Blatchf. 106, 117, Fed.Cas.No. 6,204; Brigham v. Lumber Co., 55 F. 881, 884. It is, however, proper to add, as was said by Blatchford, J., in Wehl v. Wald, 17 Blatchf. 342, 346, Fed.Cas. No. 17,356, that:

'If, as matter of discretion, a state court can or does require notice in any case of removal, such notice was dispensed with in this case by the state court, and, the matter being one of practice, it is for the state court to regulate its own practice, and this court will not review such a question.'

3. Rule 79 of this court provides that:

'Whenever the proper proceedings have been perfected in a state court to remove a case from such court to this court, pursuant to any statute of the United States, either party may at any time thereafter, as of course, file the transcript required by law in this court, and serve written notice of such filing upon the adverse party or his attorney; and upon filing in this court satisfactory evidence of the service of such notice, the clerk shall enter the action upon his register, and thenceforth the provisions of rule 78 of this court shall be applicable thereto, and the same proceedings may be thereafter had as if the transcript had been filed by the party removing the case at the time prescribed by law.' Under prior rules, a cause, when removed from the state court, was liable to remain in the clerk's office until the next term of the court without being entered upon his register, and the result was, in many cases, to cause undue delay. Rule 79 was therefore adopted for the sole purpose of enabling either party to 'speed the cause.'

In Delbanco v. Singletary, 14 Sawy. 124, 130, 40 F. 177, this court, with reference to rule 79, said:

'Its sole object and purpose is to carry out the express terms of the statute for the advancement of justice and the prevention of delays in proceedings.'

The failure to give the notice before the next term of court constitutes no ground for remanding the cause.

4. The preliminary objections being disposed of, we now reach...