Fidelity & Casualty Co. v. Hubbard

• Decision Date: 03 October 1902
• Citation: 117 F. 949
• Court: U.S. District Court — Western District of Virginia
• Parties: FIDELITY & CASUALTY CO. v. HUBBARD.

117 F. 949

FIDELITY & CASUALTY CO. v. HUBBARD.

United States Circuit Court, W.D. Virginia.

October 3, 1902

Green Withers & Green, for complainant.

Peatross & Harris, for defendant Hubbard.

McDOWELL District Judge.

On a petition praying that R. M. Hubbard be enjoined from proceeding with an action at law against the Fidelity &amp Casualty Company in the corporation court of Danville, Va. It appears that on May 9, 1902, R. M. Hubbard, a citizen of Virginia, sued out from the office of the clerk of the corporation court of Danville a summons requiring the company, a citizen of New York, to appear at first June rules, 1902, and answer a declaration in trespass on the case, the damages being laid at $4,000. The summons was served in due time. At first June rules the declaration was filed, and the common order was entered. At second June rules the common order was confirmed and writ of inquiry ordered as the company had failed to appear. The first term of the court at which a defense on the merits could be made commenced on July 7, 1902. On that day the company filed its petition for removal to this court on the ground of diverse citizenship, which is in due form. On the ground that the petition was offered too late, the corporation court refused to accept it. The time for filing the petition and bond under the act of 1875 (18 Stat. 471) was 'before or at the term at which said cause could be first tried and before the trial thereof. ' The language of the act of 1887 (24 Stat. 554) and of the act of 1888 (25 Stat. 435) is as follows:

' * * * may * * * file a petition in such suit in such state court at the time or at 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. * * * It shall then be the duty of the state court to accept said petition and bond, and proceed no further in such suit. * * * '

Under the Virginia statute (Code 1887, Secs. 3287, 3288) the office judgment in common-law causes does not become final until the last (or fifteenth) day of the next following term. And prior to such day of the term the defendant can interpose a plea to the merits. The filing of such plea sets aside the office judgment. In chancery causes the decree nisi is taken on the return day of the writ, and at the next rule day the decree pro confesso is taken (Code 1887, Sec. 3284), but by section 3275 answer may be filed at any time before final decree.

The question to be decided turns on the proper construction of the act of congress of August 13, 1888 (25 Stat. 435). Does the language of the act refer to the time when a pleading to the merits is required to be filed, or to the time when dilatory pleas are required to be filed? If this question could be treated as an open one, there are reasons, aside from the very short time given a defendant to prepare and file removal papers, which lend force to the argument that the former is the true construction of the act. The act of 1875 clearly allowed the petition for removal to be filed at the trial term. If congress, in enacting the statute of 1887, and in correcting it by the statute of 1888, had intended to make a radical change in the removal practice, it seems that it would have plainly indicated such an intent. Yet the language in the later statutes is susceptible, and easily susceptible, of being construed to mean that the time for filing the petition and bond is the time when pleadings in bar must be filed. Again, the statute requires that the petition and bond are to be presented in the state court, not in the clerk's office, and not before the judge thereof. Under the Virginia practice (and I think this is true in many of the states) the time for filing dilatory pleas is during the vacation of the court, and the place is the clerk's office. Congress might be presumed to have known this, and, if it had been the intention that the petition for removal must be filed at the time that dilatory pleas are due, it would seem to be fairly argued that provision would have been made for offering the petition and bond to the judge of the state court in vacation, or for filing them in the clerk's office. It is not conclusive against this argument that the intent was that the federal court should be the one to pass on the validity of dilatory pleas as well as of pleas in bar. Under the construction requiring the petition and bond to be filed at or before the time when pleas in bar are due, the defendant, by filing the removal papers on the return day of the writ, could secure a hearing in the federal court on his dilatory pleas. And by failing to file his petition until term time it is difficult to find in the statute any intent that he should thereby lose the right to have the federal court try the cause on its merits. However, there are dilatory pleas that are technically known 'pleas to the declaration.' For instance, for variance between writ and declaration. 4 Minor, Inst. (3d Ed.)pt. 1, p. 754. Hence it is clear that the statute is capable of being construed as meaning the time when the earliest pleading of any kind is due. But the question is not, as I think, open to construction by a subordinate federal court. In Martin's Adm'r v. Railroad Co., 151 U.S. 673, 14 Sup.Ct. 533, 38 L.Ed. 311, which went up from West Virginia, the facts were the same as in the case at bar. The defendant did not appear or plead on the return day of the writ, nor at the next rules, but at the next term of court-- not having filed any pleadings-- it presented its petition for removal and bond. The court held that the defendant was not a citizen of West Virginia, that its petition for removal was filed too late, and that, as no objection to the removal had been made in the lower courts, this objection had been waived. The language of the opinion is in part as follows:

'It was therefore filed at or before the time at which the defendant was required by the laws of the state to answer or plead to the merits of the case, but after the time at which he was required to placed to the jurisdiction of the court, or in abatement of the writ. Was this a compliance with the provision of the act of congress of 1887, which defines the time of filing a petition for removal in the state court? We are of opinion that it was not, for more than one reason. This provision allows the petition for removal to be filed at or before the time when the defendant is required by the local law or rule of court 'to answer or plead to the declaration or complaint.' These words make no distinction between different kinds of answers or pleas; and all pleas or answers of the defendant, whether in matter of law by demurrer, or in matter of fact, either by dilatory plea to the jurisdiction of the court, or in suspension or abatement of the particular suit, or by plea in bar of the whole right of action, are said, in the standard books on Pleading, to 'oppose or answer' the declaration or complaint which the defendant is summoned to meet. Steph. Pl. (1st Am. Ed.) 60, 62, 63, 70, 71, 239; Lawes, Pl. 36. The judiciary act of September 24, 1789 (chapter 20, Sec. 12), required a petition for

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