Collins Mfg. Co. v. Wickwire Spencer Steel Co.

• Decision Date: 16 February 1926
• Docket Number: No. 2474.,2474.
• Citation: 11 F.2d 196
• Parties: COLLINS MFG. CO. v. WICKWIRE SPENCER STEEL CO.
• Court: U.S. District Court — District of Massachusetts

11 F.2d 196 (1926)

COLLINS MFG. CO. v. WICKWIRE SPENCER STEEL CO.

No. 2474.

District Court, D. Massachusetts.

February 16, 1926.

John P. Kirby, Wm. H. Brooks, and Brooks, Kirby, Keedy & Brooks, all of Springfield, Mass., for plaintiff.

Warner, Stackpole & Bradlee, Marvin C. Taylor, and H. E. Warner, all of Boston, Mass., for defendant.

BREWSTER, District Judge.

The Collins Manufacturing Company (a Massachusetts corporation) filed in the superior court for the county of Hampden, in the commonwealth of Massachusetts, on July 10, 1925, a bill of complaint against the Wickwire Spencer Steel Company (a Delaware corporation), in which bill of complaint the plaintiff alleges interference by the defendant with certain riparian rights of the plaintiff. The plaintiff sought a temporary injunction, and on the same day a notice to show cause why the temporary injunction should not be granted was issued, returnable Saturday, July 18, 1925, at 11:30 a. m. A summons with attachment was also issued, returnable the first Monday of August, 1925.

On July 18, 1925, defendant, through its attorneys, entered a general appearance, and its attorney came before a justice of the superior court on July 18 for the purpose of opposing the issuing of an injunction and obtaining security in the event an injunction was issued.

For reasons not now important, the hearing on the prayer for a temporary injunction was continued until July 25 at 11 a. m., and the justice orally ordered pleadings to be completed on or before July 24, and a docket entry was made to the effect that pleadings were to be completed on or before July 25 at 11:30 a. m., which entry was later amended, by order of the justice, to show that the pleadings were to be completed on or before July 24, 1925.

On July 25, at 11:45 a. m., defendant filed its petition for removal of the cause to this court, together with bond and affidavit of notice and a motion for hearing at Boston, which was fixed for July 28, 1925, at 10 o'clock a. m.

On July 28, plaintiff filed an answer to the petition for removal, setting up that the removal was not filed within the time required by law, and that the defendant had not filed a sufficient bond. After hearing by a justice of the superior court at Boston, at which both of these objections to the removal were urged by the plaintiff, the bond was approved and the case ordered removed to this court. On the 9th day of September the clerk of the state court had prepared his copy of the record, and on the 16th day of September the copy was filed in this court. Plaintiff thereupon filed a motion to remand.

One of the grounds upon which the motion is based is that the petition and bond were not filed within the time required by the statutes of the United States. The applicable statute is section 29 of the Judicial Code (36 Stat. 1095 Comp. St. § 1011), which provides that the petition for removal may be filed in the state court in which the suit is pending "at the time, or any time before the defendant is required by the laws of the state or the rule of the state court in which such suit is brought to answer or plead to the declaration or complaint of the plaintiff."

The statutes of Massachusetts, in section 6 of chapter 214 of the General Laws, provide as follows:

"Procedure, process and practice in equity causes in the superior court shall, as nearly as may be, conform to that of the supreme judicial court, the general rules of which for the regulation of practice in equity shall, so far as applicable, * * * be the rules of the superior court for the regulation of practice in equity."

The rules adopted by the Supreme Judicial Court governing practice in equity, so far as pertaining to this inquiry, are as follows:

Rule VIII. "The day of appearance shall be the return day of the writ or subpœna, when personal service shall be made on the defendant, or he shall have had personal notice of the suit; or the return day of any order issued under the fourth or fifth rule, when no personal service shall be made. And if the defendant does not appear and file his answer, plea, or demurrer within one month after the day of appearance, the plaintiff may enter an order to take his bill for confessed; and the matter thereof may be decreed accordingly, unless good cause appears to the contrary."

Rule XXI. "The court may in its discretion allow the parties to amend their pleadings, and order or permit pleadings to be filed, or any proceeding to be had, at other times than are provided in these rules; and may in all cases impose just and reasonable terms upon the parties."

The plaintiff contends that the general appearance of the defendant, the participation in a hearing upon the order of notice to show cause why temporary injunction should not issue, and the order of the justice of the superior court to complete pleadings on or before July 24, 1925, precluded the defendant from applying for removal on July 25.

The first question to be considered is whether the time within which application for removal shall be filed in the state court, as fixed by the provisions of the federal statute, is to be limited by the rules of the court generally applicable to suits in equity, or whether that time can be shortened by order of the court made in the particular suit.

A history of the legislation with which we are now concerned, together with the construction that has been put upon the present statute and antecedent statutes, leaves little doubt that the intent of section 29 of the Judicial Code was to prescribe a definite period of time to be fixed, either by statute of the state or by rule of the state court of general application, and not by special order of the court.

The earliest legislation relative to the subject under consideration is found in the act of 1789 (1 Stat. 79), which provided that applications for removal should be filed at the time of appearance. This provision was regarded as too rigorous, and Congress in 1866 swung the pendulum to the other extreme by providing that the petition for removal could be filed at any time before trial or final hearing of the cause. Act of July 27, 1866, 14 Stat. 306.

The act of 1866 apparently was unsatisfactory, and in 1875 (Act of March 3, 1875, 18 Stat. 470) it was provided that a party seeking removal must file his petition in the state court before or at the term at which such cause could be first tried and before the trial thereof.

In considering this act of 1875, the Supreme Court in Pullman Palace Car Co. v. Speck, 5 S. Ct. 374, 113 U. S. 84, 28 L. Ed. 925, held that the petition must be filed at the first term after the commencement of the suit at which a trial was in order according to the rules of procedure of the court; the court stating that this term was to be ascertained by the rules of the court's adoption and not by the manner in which the parties had complied with them or had been excused for noncompliance by the court or by stipulation among themselves. See, also, to the same effect, Babbitt v. Clark, 103 U. S. 606, 26 L. Ed. 507; Gregory v. Hartley, 5 S. Ct. 743, 113 U. S. 742, 28 L. Ed. 1150.

In 1888 there was further federal legislation affecting the time within which application for removal should be filed. The Act of August 13, 1888 (25 Stat. 434), contains provisions identical with those of section 29 of the Judicial Code, quoted above.

It has been held in the Circuit Court for this district in Frink v. Blackinton Co., 80 F. 306, a case arising since the enactment of the Act of August 13, 1888, that the rule of the state court in Massachusetts which provided that "demurrers, answers and pleas in abatement, and motions to dismiss, shall be filed within the time allowed by law for entering an appearance, unless otherwise ordered by the court for good cause shown," required a petition to be filed within the ten days allowed by statute for appearance, and that the words "unless otherwise ordered by the court for good cause shown" did not give the court power to enlarge the time; Judge Putnam stating that —

"Nearly every rule and statute fixing periods within which pleadings are to be filed give the courts power to enlarge the time, and such power is also ordinarily implied. Therefore, if this fact should be held of importance, there would, in a very large proportion of cases, be no practical limit to the period within which a petition for removal could be filed."

While the decisions of the inferior federal courts are not wholly in accord, I think the better rule and the one sustained by the weight of authority in other jurisdictions is that a petition for removal must be filed within the time for pleading fixed by statute or a rule of the court of general application, and not within the time which may be extended by stipulation of parties or special order of the court. Austin v. Gagan (C. C.) 39 F. 626, 5 L. R. A. 476; Velie v. Manufacturers' Accident Indemnity Co. (C....