Dauenhauer v. Superior Court In and For Sonoma County

• Decision Date: 08 March 1957
• Citation: 307 P.2d 724,149 Cal.App.2d 22
• Court: California Court of Appeals Court of Appeals
• Parties: Florian F. DAUENHAUER, Petitioner, v. The SUPERIOR COURT of the State of California, IN AND FOR the COUNTY OF SONOMA, Respondent. Civ. 9227.

Page 724

307 P.2d 724

149 Cal.App.2d 22

Florian F. DAUENHAUER, Petitioner, v. The SUPERIOR COURT of the State of California, IN AND FOR the COUNTY OF SONOMA, Respondent.

Civ. 9227.

District Court of Appeal, Third District, California.

March 8, 1957.

White & White, San Francisco, for petitioner.

Cyrus B. King and Ernest I. Spiegl, San Francisco, for real parties in interest.

VAN DYKE, Presiding Justice.

Heretofore, petitioner filed an action in the respondent court, entitled 'Florian F. Dauenhauer, plaintiff, v. W. E. Barber and Betty L. DeVoto, * * * defendants', seeking to recover defaulted cash rentals on a hop-picking machine, damages for other breaches of the lease, and repossession of the machine. Defendants Barber filed their answer, and W. E. Barber filed a cross-complaint. Plaintiff's demurrers to answer and cross-complaint were sustained with leave to amend. Amended pleadings were filed, and the court by order extended the plaintiff's time to plead to the pleadings as amended. The Utah Home Fire Insurance Company, which had been joined as a cross-defendant, filed its petition for removal of the cause to the United States District Court. The cause was removed during plaintiff's extended leave to further plead. The federal court remanded the cause to the respondent court, and within the unexpired time, not counting the interim of federal control, plaintiff demurred to the amended answer and cross-complaint and moved to strike both pleadings. When he filed these pleadings, plaintiff was unaware that, on the day following the remand and at the request of the cross-complainant, his default had been entered. Plaintiff's demurrers and motions to strike came on for hearing, and at that time cross-complainant called the respondent court's attention to the default and objected to the court's hearing the demurrers and motions on the merits. The question of the propriety of the clerk's entering plaintiff's default for failure to plead in time presents the initial controversy herein, and before going further we will give it our attention.

Under the Removal Act, 28 U.S.C.A. § 72, prior to its amendment, May 24, 1949, 28 U.S.C.A. § 1446, it had often been held that where, after removal, the moving party failed to make out a case for removal, the decision remanding was a decision that the jurisdiction of the federal court had never attached, and the jurisdiction of the state court had never been surrendered; that, therefore, in the interim the state court could proceed, in the absence of objection, and could default a party for failure to answer or otherwise plead within the time permitted by the statutes of the state or the orders of the state court. In effect, the cases held that the moving party took his chances when he attempted to remove a case not in law removable. The amendment, effective May 24, 1949, supra, materially changed the language of the statute, referring to the effect of removal. From the standpoint of jurisdiction, the matter early received the attention of the courts. One of the first cases appearing in the reports is Hopson v. North American Insurance Company, 71 Idaho 461, 233 P.2d 799, 25 A.L.R.2d 1040. After noting the changes in the statute worked by the amendment, the court said, 233 P.2d at page 802:

'By providing in Section 1446 that taking such procedural steps effects the removal of the cause to the Federal Court, which is not found in the earlier Act, Congress has thereby expressly effected the removal of the cause to the Federal Court irrespective of the ultimate determination of the question as to whether or not it is removable; it is not thereafter in the State court for any purpose until and unless the cause is remanded; for that reason the State court is expressly prohibited from proceeding further until and unless it is so remanded; under Sec. 72 the removal was never accomplished unless it was a cause removable; under the present Act removal is accomplished and jurisdiction attaches in the Federal Court even though it may be subsequently determined that it should be and is thereafter remanded. Removability is no longer a criterion which gives or denies validity to the proceedings in the State court while a petition for removal to the Federal Court is pending; any such proceedings in the State court under the present act are not sanctioned; they are prohibited.

* * *

* * *

'We hold that under 28 U.S.C.A. § 1446, a case is removed from the jurisdiction of the State court upon a compliance with the procedural steps therein set forth for all purposes until and unless it is subsequently remanded to such State court; that until and unless the case is remanded no valid proceedings can be taken in the State court at any time following the filing of such petition and bond and giving notice thereof to all adverse parties and filing a copy of the petition with the Clerk of the State court; furthermore, that any action so taken in the State court thereafter and prior to remanding the cause to such State court, will have no force or effect.'

In Allen v. Hatchett, 91 Ga.App. 571, 86 S.E.2d 662, 665, the court adopted the reasoning of the Idaho court in a case where the contention was made that, where pending remand and after removal, the time allowed to appear and plead as given by state statute or state court order had elapsed, the case went into default, and the state court erred on remand in allowing defensive pleadings to be filed. The Georgia court said:

'In the instant case the jurisdiction of the State court was suspended until the case was remanded to it by the Federal court, at which time the State court resumed jurisdiction and the case stood as it did at the time of removal. Therefore, where the case was removed to the Federal court 22 or 23 days after service of process, when the case was remanded to the State court it was not in default, and the court did not err in allowing, on motion, the defendants to pay all costs and file their defensive pleadings instanter.' See also, Annotation 25 A.L.R.2d 1045, citing State ex rel. Allis-Challmers Mfg. Co. v. Boone, Circuit Ct., 227 Ind. 327, 86 N.E.2d 74.

On the authority of the foregoing decisions, we hold that when the cause was remanded to the respondent court by the federal court, the state of suspension theretofore existing terminated, and plaintiff had the unexpired time theretofore given him within which to file his demurrers and motions to strike. Since all this appeared upon the record of respondent court, the clerk was without authority to enter the default, and his attempt to do so was a nullity. Crofton v. Young, 48 Cal.App.2d 452, 457, 119 P.2d 1003.

The act of the clerk in entering the default being void, the demurrers and the motions to strike were properly filed by the clerk, and it was the duty of the...