Daugherty v. Western Union Telegraph Co.

• Decision Date: 24 April 1894
• Docket Number: 9,007.
• Citation: 61 F. 138
• Parties: DAUGHERTY v. WESTERN UNION TEL. CO.
• Court: United States Circuit Court, District of Indiana

61 F. 138

DAUGHERTY v. WESTERN UNION TEL. CO.

No. 9,007.

United States Circuit Court, D. Indiana.

April 24, 1894

Ibach &amp Reiter, for plaintiff.

Agnew &amp Kelly, for defendant.

BAKER District Judge.

This action was brought in the state court by the plaintiff against the defendant, a foreign corporation, by complaint filed on the 27th day of January, 1894. On the 12th day of February, 1894, the defendant, by counsel, entered of record its voluntary appearance to the action. A rule of the court duly adopted, and then in force, made the answer of the defendant due 'the day succeeding the return day or voluntary appearance;' hence the answer was due on the 13th day of February, 1894. On the 14th day of February 1894, the defendant filed in the state court its verified petition and bond for the removal of the case into this court, and moved the court to make an order awarding such removal. The motion was denied by the state court solely upon the ground that the application was not seasonably made. The defendant now presents a certified copy of the record, and moves the court for leave to docket the cause in this court. The excuse for failure to file the application to remove at or before the time when the answer was due is set forth in two affidavits filed in this court in support of the motion for leave to docket. These affidavits show that the counsel for the defendant resided in a county adjoining that in which the action was pending, and that one of them started on a passenger train for that place on the morning of the 13th day of February, and that if the train had been able to run on its usual time he would have reached the place of holding court about 10 o'clock a.m. of that day, and in ample season to have filed the petition in proper time. The sole cause of delay was occasioned by the blockading of the train by a great and unusual fall of snow on the previous day and night, which wholly interrupted the movement of trains between the point where the blockade occurred and the place of holding court. The blockade continued during the whole of the 13th day of February. The petition and bond for removal were filed and presented to the state court at its opening on the morning of the 14th of February.

In my opinion, the failure to start for the place where the court was sitting until the day when the answer was due was such an act of negligence as to defeat the right of removal, without regard to the delay occasioned by the storm. I do not wish however, to dispose of the motion on this ground. I prefer to place it upon the ground principally argued and relied upon by counsel for the defendant. They concede that the answer was due on the 13th day of February, but they earnestly contend that the storm and consequent blockade were the acts of God, and that the present case falls within the maxim, 'Actus Dei nemini nocet.' The present...