Donahue v. Calumet Fire-Clay Co.

• Decision Date: 06 May 1899
• Citation: 94 F. 23
• Parties: DONAHUE et al. v. CALUMET FIRE-CLAY CO.
• Court: United States Circuit Court, District of Kentucky

94 F. 23

DONAHUE et al. v. CALUMET FIRE-CLAY CO.

United States Circuit Court, D. Kentucky.

May 6, 1899

Wallace & McDonald and J. D. Reed, for plaintiffs.

D. W Sanders and C. B. Seymour, for defendant.

EVANS District Judge.

The plaintiff Philip Donahue begun this action in the state court by filing his petition therein on April 22, 1897. The plaintiff alleged in his petition that the defendant was an Ohio corporation, and had its chief office in that state. A summons was issued, and attempted to be executed on various persons alleged, in one capacity or another, to be agents or officers of the defendant. On February 12, 1898, the defendant entered its special appearance, for the purpose and moved the court to quash the various returns on the summons. This motion after hearing was overruled by the state court on February 26, 1898. On March 5, 1898, the following order was made in the case by the state court, namely: 'Came defendant by counsel, and filed its answer herein. On motion of defendant, by counsel, it is ordered that this action be and is assigned to March 9, 1898, for trial. ' The opening sentence of the answer of the defendant begins as follows: 'The defendant, the Calumet Fire-Clay Company not waiving its objection to the process herein, but expressly reserving the same, denies that the defendant,' etc.; and then proceeds with a full answer to the merits of the case, as the same had been presented in the petition of the plaintiff as amended. On March 12, 1898, defendant tendered its bill of exceptions, which was allowed, signed by the judge, and made part of the record, covering all the proceedings on the motion to quash the returns on the summons, and disposing of that motion. On May 7, 1898, by consent of the parties, the action was assigned for trial on the 1st of June following. On May 23, 1898, on motion of the defendant, by counsel, and on affidavit filed by it, it was ordered by the court that Frank Parsons do personally appear on June 1, 1898, to testify in the action in behalf of the defendant, and not to depart without leave of the court. Parsons was the commonwealth's attorney, who had conducted the case out of which the action grew. On June 1 1898, by consent of the parties, by counsel, the case was reassigned for trial October 19, 1898. On October 11, 1898, the court, on the defendant's motion, repeated its former order, requiring the personal attendance of Frank Parsons at the trial to testify for defendant. On October 19, 1898, by consent of the parties, it was ordered that the action be assigned to April 4, 1899, for trial. Philip Donahue having become a lunatic in the meantime, Patrick J. Donahue was appointed his committee on October 22, 1898, and on November 2, 1898, on his motion, without objection from the defendant, was admitted as a party plaintiff in this action, and permitted to prosecute the same for the benefit of Philip Donahue. On November 5, 1898, plaintiffs moved the court to set aside the order assigning the case for trial on April 4, 1899, and to assign it for trial at the earliest day possible. The court sustained the motion on November 12, 1898, and set the case for trial on February 6, 1899, the defendant excepting to both orders. On January 25, 1899, on motion of defendant, an order similar to previous ones was entered as to the personal attendance of the witness Frank Parsons, an affidavit on behalf of defendant being filed as the foundation for the order. On January 28, 1899, the defendant, having given notice thereof, moved the court for leave to file, and was permitted to file, an amended answer. On the same day, the plaintiffs demurred to the amended answer, and it was sustained. The amended answer thus filed set forth the reasons and the facts upon which the defendant still insisted that the service of the summons was not sufficient in law and that it should be quashed. The amended answer set up no other facts, except such as embraced an attempt to show the insufficiency of the service of the summons in the case. On February 6, 1899, the defendant, by counsel, moved the court for leave to file an amended answer. No action appears to have been taken upon this motion, and on February 7, 1899, by agreement of counsel, the case was set for trial on the 27th of the month. On February 18, 1899, on defendant's motion, and on an affidavit filed, the order respecting the personal attendance of Frank Parsons as a witness was entered in the same terms as had been frequently done before. On February 25, 1899, the defendant moved the court to set aside the order sustaining the demurrer to defendant's amended answer, and also to set aside the order overruling the motion to quash the returns of the sheriff on the summons. On March 4, 1899, the defendant, by counsel, on notice previously given in writing, moved the court to reassign the case to a day for trial. The motion was sustained, and the case was set for trial on March 13, 1899. On March 13, 1899, an order sustaining the motion to set aside the order overruling the motion to quash the sheriff's returns on the summons, which had been made on March 1, 1898, was entered, and the returns on the summons were quashed; whereupon, on motion of the plaintiffs, leave was given the sheriff to amend his returns according to the facts. On March 25, 1899, the case was passed until March 27, 1899, upon which day the plaintiffs moved the court to assign the case for trial, and, over the defendant's objection, it was assigned for trial on April 7, 1899, and the defendant entered a special &&&& appearance, and moved the court to quash the amended return of the sheriff on the summons. This motion was set for hearing on April 1, 1899, but before action was taken thereon, on that day, the defendant filed its petition and bond, and removed the case into this court. Upon these facts, the plaintiffs move to remand the case to the state court, and insist that, if the filing by defendant of its answer on March 5, 1898, and then having the case assigned to a future day for trial, did not per se exclude the right of removal, then that those acts, coupled with the numerous other steps taken by defendant during a period of more than a year succeeding that date, certainly deprived it of the right to do so.

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