Delbanco v. Singletary

• Decision Date: 29 July 1889
• Citation: 40 F. 177
• Parties: DELBANCO v. SINGLETARY et al. LEVY et al. v. SAME et al.
• Court: U.S. District Court — District of Nevada

40 F. 177

DELBANCO v. SINGLETARY et al.

LEVY et al. v. SAME et al.

United States Circuit Court, D. Nevada.

July 29, 1889

Syllabus by the Court

Defendants demurred to plaintiff's complaints in the state court. The demurrers were heard and sustained in the state court and plaintiffs were given leave and time to file amended complaints, which they filed. To plaintiffs' amended complaints defendants demurred, and at the same time filed their petitions and bonds for removal of the cases to this court. Held, that the petitions and bonds were not filed within the statutory time, and that the cases must be remanded.

Under rule 79 of this court (ninth circuit) the plaintiff may, at any time after defendant has filed and submitted to the state court his petition and bond for removal of the cause, procure a transcript of the record of the cause from the state court and file the same in this court, and, after service of notice thereof, as prescribed in said rule, this court will take jurisdiction of the case for all purposes.

J. A MacMillan and M. S. Bonnifield, for plaintiffs.

W. F Goad, Wm. S. Bonnifield, and W. C. Belcher, for defendants.

SABIN J.

The points involved in each of the above cases are substantially the same, and the cases are considered together, the same ruling being applicable to each case. The actions were begun in the state court, and removed to this court. Summons and complaint were served on the defendant Singletary, May 27, 1889. By state statute defendants were required to plead or answer within 10 days after the date of service of summons, exclusive of the day of service, i.e., June 6, 1889. On that day, to-wit, June 6, 1889, all of the defendants in the actions appeared by counsel, and filed demurrers to the complaints on various grounds. On June 8th the demurrers were heard by the court, and sustained, and plaintiffs were given 10 days within which to file amended complaints, and defendants were given 20 days after service of said amended complaints to answer thereto. On June 15 plaintiffs served and filed amended complaints in each action, and on July 3d defendants filed demurrers thereto, together with their petitions and bonds for the removal of the cases to this court, and on July 5th the state court ordered the cases transferred to this court. Under rule 79 of this court plaintiffs caused a transcript of the record in each case to be filed in this court on July 8th, and they now move that the cases be remanded to the state court, on the ground that the petitions and bonds for removal were not filed within the time required by the act of congress of August 13, 1888.

Under repeated rulings of this and other circuit courts it is clear that the cases must be remanded. It has been repeatedly held by the supreme court, under the removal act of 1875, that the hearing of a demurrer was a trial of the case within the meaning of that act. Alley v.

Nott, 111 U.S. 472, 4 S.Ct. 495; Scharff v. Levy, 112 U.S. 711, 5 S.Ct. 360; Laidly v. Huntington, 121 U.S. 179, 7 S.Ct. 855. It has also been repeatedly held by the same court, under the removal act of 1875, that the 'term at which the cause could be first tried' was the first term after issue joined, when, in the ordinary course of proceedings, the case could be ready for trial, and be tried; and that, where the trial of a case had been continued over the first term of court at which it could be tried, either by order of court or stipulation of parties, a petition for removal of the case, filed thereafter, came too late. Babbitt v. Clark, 103 U.S. 606; Car Co. v. Speck, 113 U.S. 84, 5 S.Ct. 374; Gregory v. Hartley, 113 U.S. 742, 5 S.Ct. 743; Kerting v. Oleograph Co., 10 F. 17; Theurkauf v. Ireland, 11 Sawy. 512, 27 F. 769; Keeney v. Roberts, 12 Sawy. 39, 39 F. 629. From these authorities it will be seen that parties desiring to remove their cases to the national courts have always been held to a strict compliance with the statute relative thereto.

The removal act of 1888 is much more restrictive than that of 1875. The right of removal is confined to the defendant, and he must file his petition and bond for removal 'at the time, or any time before, the defendant is required by the laws of the state, or the rules of the state court in which the suit is brought, to answer or plead to the declaration or complaint of the plaintiff. ' Under the removal act of 1888 writs of error or appeals do not lie to an order remanding a case to the state court. But if they did, it cannot for a moment be doubted but that the supreme court would hold the defendant to a strict compliance with the statute in all respects. In the cases at bar the petitions and bonds for removal were not filed until the demurrers to the amended complaints were filed, and after a hearing and judgments on the first demurrers. This was clearly too late. Wedekind v. Southern Pac. Co., 36 F. 279; Dixon v. Telegraph Co., 38 F. 377; Hurd v. Gere, 38 F. 537; Kaitel v. Wylie, 38 F. 865. We think it will be better for all parties concerned, will save time and expense to litigants, if it is clearly and distinctly understood that parties desiring to remove their cases from the state courts must act promptly, and comply strictly with the provisions of the statute relative thereto; that courts have not the authority to, and will not, by doubtful construction, enlarge, change, or modify the clear terms of the statute. The statute is clear and simple as to the time when the petition and bond for removal must be filed, and parties must comply with it. In Wedekind v. Southern Pac. Co., supra, decided by this court, an inference might arise that possibly an order of the state court, extending defendant's time to plead, might be construed as extending his time within which to file his petition and bond for removal of the cause. If such inference fairly arises in that case we wish here to correct it, as under the authorities cited it seems clear that such an order of the state court could not have any such effect. The state court could not, by order or otherwise, enlarge or modify the terms and provisions of an act of congress, nor confer jurisdiction upon this court, which otherwise it would not have.

It is urged on the part of two of the defendants that, inasmuch as the summons and complaint were served on only one of the defendants, the time of the defendants not served to plead or answer must be considered as commencing at the date of the order of court sustaining the demurrers, and giving plaintiffs leave and time to file amended complaints. We think this point untenable. The defendants all appeared at the time of filing the demurrers to the first complaints, and judgments were had in their favor upon said demurrers. Such appearance was a waiver of service of summons, and necessarily of the intervening time between service of summons, had they been served, and the time at which they filed their demurrers. And further, the actions are not separable, as between the defendants, and they could not be removed as to two of the defendants only. They must be removed as to all or none.

It is further urged by defendants that these motions to remand are premature, at the present time, and cannot now be entertained or heard by the court. It is contended that, as the removal act only requires the defendant to file a copy of the record of the case in this court 'on the first day of its then next session, * * * and, said copy being entered as aforesaid in said circuit court, the cause shall then proceed in the same manner as if it had been originally commenced in said circuit court,' therefore the court cannot entertain these motions until the next term of court, to-wit, next November term or session. In support of this position counsel cite Railroad Co. v. Koontz, 104 U.S. 5. We do not consider this case particularly applicable to the cases before us. The point here involved was not considered or discussed in that case, but rather the reverse, to-wit, the power of the circuit court to permit a copy of the record to be filed after the first day of the term when it should have been filed. And the supreme court held that, in a proper case, on cause shown, the circuit court might permit the record to be filed after the first day of the term at which it was...