Fidelity Trust & Safety-Vault Co. v. Newport News & M.V. Co.

• Decision Date: 09 July 1895
• Citation: 70 F. 403
• Court: United States Circuit Court, District of Kentucky
• Parties: FIDELITY TRUST & SAFETY-VAULT CO. v. NEWPORT NEWS & M.V. CO.

70 F. 403

FIDELITY TRUST & SAFETY-VAULT CO. v. NEWPORT NEWS & M.V. CO.

United States Circuit Court, D. Kentucky.

July 9, 1895

W. O Harris, for plaintiff.

Thos W. Bullitt, Holmes Cummings, and Grubbs & Morancy, for defendant.

BARR District Judge.

This case is submitted on motion of plaintiff to remand the case to the state court from whence it came. It appears that the petition was filed in the common pleas division of the Jefferson circuit court on May 2, 1894; that summons was issued on same day, and executed upon Holmes Cummings, the sheriff making the following return:

'Came to hand May 2nd, 1894, at 4:40 p.m. Executed May 5th, 1894 on the Newport News & Mississippi Valley Company, by delivering to Holmes Cummings, its general attorney for the state of Kentucky, a copy of the within summons, said Cummings being the chief officer or agent of said company found in this county.

'(Signed) H. A. Bell, S.J.C., by John Tarlton, D.S.'

On the 22d of May, 1894, the defendant filed a plea in abatement, in the following words:

'In this cause, for the single purpose of raising the question of jurisdiction below stated, the defendant, the Newport News & Mississippi Valley Company, comes and states that at the time of the filing of plaintiff's petition herein, and all the times since then, including the day of service of process herein upon Holmes Cummings, it, the said Newport News & Mississippi Valley Company, had no officer or agent in this county or state, and the said Holmes Cummings was not an officer or agent of this defendant at the date of the service of process herein upon him (May, 1894), nor at or since the filing of the plaintiff's petition herein, nor at any other time. Said Holmes Cummings is a duly licensed and practicing attorney at law, enrolled as such, and practicing in the courts of this state, although a resident of the state of Tennessee, and is, and for several years last past has been, in the employ or the defendant as its attorney, representing it in its legal business, and not otherwise. This defendant pleads this matter in abatement herein, and asks that this service be quashed and the action abated.'

On the 31st of May the plaintiff filed a demurrer to this plea, as being insufficient in law to abate the action; and on the 8th of June, 1894, by consent, it was assigned to Monday, June 11th, for hearing on the demurrer to the plea in abatement; and on the 11th of June, by consent of all parties, by counsel, the demurrer was postponed one week; and on the 18th of June, 1894, the parties, by counsel, appeared, and the demurrer to the plea in abatement being heard by the court, it was sustained; and on the 23d of June, 1894, the defendant filed its petition for removal, and executed the proper bond.

The act of congress of the 13th of August, 1888, allowed a defendant to remove a cause from a state court '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 said suit is brought to answer or plead to the declaration or complaint of the plaintiff.' 25 Stat.p. 435, Sec. 3.

The first inquiry is whether or not the petition for removal, which was filed on the 23d of June, 1894, was in time, and that will depend upon the present law of the state of Kentucky in regard to the court of common pleas division. By the act of Kentucky approved December 30, 1892, entitled, 'An act concerning practice in circuit courts having continuous sessions,' it is provided that 'the time fixed in the summons for the defendant to answer shall be 20 days after the service thereof, if in the county in which the court is to sit, and 30 days if elsewhere in the state. ' Section 1003, St. Ky., and section 20, Bullitt, Code Prac. And in the next two sections (section 1004, St. Ky.; section 21, Bullitt, Code Prac.) it is provided that 'the defense to an action shall be filed within 20 days after the service of the summons if in the county where such court sits, and within 30 days after service if served elsewhere in the state,' and (section 22, Bullitt, Code Prac.) 'Every pleading subsequent to the answer shall be filed in fourteen days after the pleading is filed to which it responds, but the court may extend the time for pleading'; also (section 24, Id.), 'The filing of a pleading in the clerk's office within the proper time, and causing it to be noted on the clerk's memorandum book and rule docket, shall be equivalent to a filing in court.' In another section (section 1034, Ky. St.) of said act the Jefferson circuit court is given authority at general term to make rules for the said court, and shall have power from time to time to change such rules. These, we believe, are the only sections of the law applicable to the present majority.

It is claimed that notwithstanding these provisions of the statute, and the fact that more than 20 days had expired after the service of the summons and the filing of the plea in abatement before the petition for removal was filed, the petition was in time, because of a rule of the Jefferson circuit court, and the uniform practice thereunder. That rule is in these words:

'When an action is ready for trial the party desiring it placed upon the trial docket may have this done by leaving a written memorandum any Monday in the clerk's office containing the number and style of the action and indicating whether it is to be set down for the plaintiff or defendant, and if not all the defendants then giving the names of those against whom it is to be set, whereupon the clerk shall place the action on the trial docket for the next succeeding Monday.' We have no evidence in this record what the practice is under this rule, which is in the same language as the former rule adopted before the act of December, 1892; but we cannot construe it, in view of the present law, to mean that the defendant is entitled, as of right, to answer on the day the case is called on the trial docket. Undoubtedly, the court may, by special order, allow an answer to be filed on the call of the case on the trial docket, and it may be equally true that a default judgment cannot be taken for the want of an answer until the case is set on the trial docket, under this rule; but is not this only a mode prescribed by which the benefit of the absence of an answer can be taken advantage of by the opposite party, and not an extension of the time to answer, which is fixed by the statute? Indeed, is it not doubtful whether the court could, by a general rule, extend the time for answer fixed by the statute, in all cases, and would it not be an attempt to change the statute by a rule of court? There is in this case no extension of time given by special order of the state court, and we, therefore, need not inquire what would be the effect of such an extension of time as was given in the case of Wilcox & Gibbs Guano Co. v. Phoenix Ins. Co. of Brooklyn, 60 F. 929, cited by defendant's counsel. We have heretofore decided, and prior to the act of December, 1892, that a party defendant had a right to file his defense until the case was called on the trial docket, and that a petition for removal any time before then was within the time provided by the act of congress. See Gowdy v. Pullman Car Co., and Dennis v. Railway Co. ^[1]

This ruling was under the then statute, but we think the present statute precludes any such ruling, since it provides that the 'defense to an action shall be filed within 20 days after the service of the summons, if within the county where the court sits. ' ...