Dunbar v. Rosenbloom

• Decision Date: 24 May 1918
• Citation: 230 Mass. 176,119 N.E. 829
• Parties: DUNBAR v. ROSENBLOOM et al.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

230 Mass. 176

119 N.E. 829

DUNBAR

v.ROSENBLOOM et al.

Supreme Judicial Court of Massachusetts, Suffolk.

May 24, 1918.

Appeal from Superior Court, Suffolk County.

Action by Charles Curtis Dunbar against Sol Rosenbloom and trustees. From an order accepting defendant's petition and bond for removal of the action to the District Court of the United States, plaintiff appeals. Order affirmed.

E. M. Shanley and John F. Barry, both of Boston, for appellant.

Lee M. Friedman, Louis B. King, and Swift, Friedman & Atherton, all of Boston, for appellees.

RUGG, C. J.

This action of contract was commenced by trustee writ returnable in the superior court on the first Monday of November, 1917. The plaintiff is alleged to be a resident of Boston and the defendant a resident of Pittsburg, in the state of Pennsylvania. Numerous residents of this commonwealth were named as trustees. No service of the writ was made upon the defendant, and he did not appear in court until January 14, 1918, when he appeared specially to file a petition for removal of the cause to the District Court of the United States for the district of Massachusetts, on the ground of diversity of citizenship of the plaintiff and defendant. On the same 14th of January the petition and bond for removal were accepted by the superior court. The plaintiff's appeal brings the case here.

[1] The only question presented is whether as matter of law a case for removal is made out on the face of the record. If any issues of fact are raised, they must be heard and determined in the federal and not in the state court. Long v. Quinn Brothers, 215 Mass. 85, 102 N. E. 348.

All the elements requisite to make out a case for removal on the face of the record are present. This is a civil action at law involving the requisite jurisdictional amount, between citizens of different states, the defendant not being a resident of this state and being the party petitioning for the removal to the federal court, and the petition for removal is in proper form. Judicial Code (Act March 3, 1911, c. 231) §§ 24, 28, 29, 36 U. S. Sts. at Large, 1091, 1094, 1095 (U. S. Comp. St. 1916, §§ 991, 1010, 1011), Chesapeake & Ohio Railway v. Cockrell, 232 U. S. 146, 151-152, 34 Sup. Ct. 278, 58 L. Ed. 544.

[2] Although several residents of this commonwealth are summoned as trustees of the principal defendant, their residence is immaterial upon the question of removal and cannot defeat the right of the defendant in this regard. The persons summoned as trustees have no interest in the main controversy. They are merely stakeholders. Reynolds v. Missouri, Kansas & Texas Railway Co., 224 Mass. 253, 112 N. E. 859;Cavanaugh v. Merrimac Hat Co., 213 Mass. 384, 100 N. E. 662. The residences of the necessary parties adversary respecting the fundamental basis of litigation being in different states, that is enough to require removal to the federal court on the petition of a nonresident defendant. Bacon v. Rives, 106 U. S. 99, 104, 1 Sup. Ct. 3, 27 L. Ed. 69;Wilson v. Oswego Township, 151 U. S. 56, 64, 14 Sup. Ct. 259, 38 L. Ed. 70. As to removal, the case stands on the same footing as it would if a valid attachment of property of a nonresident defendant had been made in any other manner than by trustee process. See Clark v. Wells, 203 U. S. 164, 27 Sup. Ct. 43, 51 L. Ed. 138.

[3] The petition for removal must be filed by the defendant ‘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.’ Judicial Code, § 29. Answers and like pleadings must be filed within twenty-one days from the return or entry day of the writ under our practice. Rule 7 of Superior Court Common-Law Rules 1917. It is a necessary implication of this rule that the twenty-one days do not begin to run until the time specified in a precept of the court served in some adequate form upon the defendant ordering him to appear. A defendant cannot be required to plead to an action at law until he has first been summoned to court. Windsor v. McVeigh, 93 U. S. 274, 279, 23 L. Ed. 914. See Herbert v. Bicknell, 233 U. S. 70, 34 Sup. Ct. 562, 58 L. Ed. 854. Special provision is made by our laws for service of a precept upon a nonresident defendant upon whom no personal or other adequate service has been made. R. L. c. 167, § 34; chapter 170, § 6. On this record no service has been made on the defendant. Therefore, the time for him to answer under the rule had not come. Lewis v. Northern Railroad, 139 Mass. 294, 1 N. E. 546. It is of no consequence whether he had actual knowledge of the matter or not. He had not appeared voluntarily before filing the petition for removal. Cases like Olds v. City...