Cobleigh v. Epping Brick Co., Civ. A. No. 787.
| Decision Date | 16 August 1949 |
| Docket Number | Civ. A. No. 787. |
| Citation | 85 F. Supp. 862 |
| Parties | COBLEIGH v. EPPING BRICK CO. |
| Court | U.S. District Court — District of New Hampshire |
Sulloway, Piper, Jones, Hollis & Godfrey, Carl C. Jones, Alvah W. Sulloway, Concord, N. H., for plaintiff.
Hughes & Burns, Walter A. Calderwood, Dover, N. H., for defendant.
This action came on to be heard on the plaintiff's motion to remand on the ground that the petition for removal had not been filed within the twenty-day period as provided by Section 1446 of Title 28 U.S.C.A.
On April 7, 1949, the plaintiff brought a writ of attachment in the state court against the defendant which was described as a corporation "duly existing under the laws of The State of New Hampshire, with its principal place of business in the Town of Epping, County of Rockingham in said State," service being made upon the Register of Deeds for said county on April 12, 1949. The sheriff's return further states that on April 15, 1949, service was made upon the named defendant "by giving in hand to Enoch D. Fuller, Secretary for the State of New Hampshire, their true and lawful attorney for the Service of Process a true and attested copy of this Writ;" with the additional statement that the secretary was paid his fee for acceptance of service. Such is the statutory requirement for service upon a foreign corporation. R.L. New Hampshire 1942, Chapter 280. The declaration of the writ is a plea in the case, with an ad damnum in the sum of $5,000, but in no other respect does the writ indicate a basis of federal jurisdiction. The defendant filed a special appearance in the state court, therein setting forth that it was not submitting generally to the jurisdiction of the court but that the filing was for the sole purpose of effecting the removal of said action to this court. On May 19, 1949, the plaintiff filed with the Superior Court a motion to amend his writ by striking out the description of the defendant as above set forth and substituting in place thereof the following: "Epping Brick Company, a Maine corporation, with a principal place of business in the Town of Epping, County of Rockingham, and The State of New Hampshire." The defendant on May 26, 1949, filed with this court a petition for removal dated May 25, 1949, together with a bond, and thereafter copies of the records and proceedings in the state court were likewise filed.
The conduct of the parties, i.e., the filing of the special appearance by the defendant and the subsequent amendment of the writ by the plaintiff, indicates that some doubt existed as to the sufficiency of the service. Prior to the amendment, jurisdiction was not clearly defined by the pleadings, and thereon the defendant was neither required nor permitted to institute steps for removal. The plaintiff strongly urges that the sheriff's return was sufficient notice to the defendant that...
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...Cab Co., D.C.Ill.1946, 68 F.Supp. 453; Morschauser v. American News Co., D.C.N.Y.1958, 158 F.Supp. 517, 519; Cobleigh v. Epping Brick Co., D.C.N.H.1949, 85 F.Supp. 862, 863; Hamilton v. Hayes Freight Lines, D.C. Ky.1952, 102 F.Supp. 594, 596. Plaintiff's discovery deposition taken pursuant ......
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Moynihan v. Elliott, 13652.
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