Goldberg, Bowen & Co., Inc. v. German Ins. Co. of Freeport, Ill.

• Decision Date: 10 April 1907
• Docket Number: 13,443.
• Parties: GOLDBERG, BOWEN & CO., Inc., v. GERMAN INS. CO. OF FREEPORT, ILL.
• Court: U.S. District Court — Eastern District of Louisiana

152 F. 831

GOLDBERG, BOWEN & CO., Inc., v. GERMAN INS. CO. OF FREEPORT, ILL.

No. 13,443.

United States Circuit Court, E.D. Louisiana.

April 10, 1907

Merrick & Lewis, Philip Gensler, and Ralph J. Schwarz, for plaintiff.

W. O Hart and Max Dinkelspiel, for defendant.

SAUNDERS District Judge.

Plaintiff is a corporation incorporated and created under the laws of California, and the defendant is a corporation created under the laws of Illinois. The suit was originally brought by attachment in the civil district court for the parish of Orleans, where the petition was filed on October 26, 1906. The state court acquired jurisdiction over the defendant by attachment of the defendant's property in the city of New Orleans served on October 26, 1906. On November 7, 1906, the defendant was further cited 'through M. A. Shumard, its agent in person. ' The record does not show how the defendant came to be cited through M. A. Shumard as its agent. The petition alleges that:

'The defendant is absent from the state, but has property rights, and credits subject to seizure within the jurisdiction of this honorable court.'

The prayer is:

'That the German Insurance Company of Freeport, Ill., be cited to answer this petition, and, if the court deems it necessary, a curator ad hoc be hereafter appointed to represent the defendant company, and said company be cited through said curator ad hoc.'

Not only is there no averment in the petition that M. A. Shumard is the agent of the defendant, but the petition necessarily implies that there was no agent of the defendant here through whom it might be summoned so far as the plaintiff knew. The sheriff's return shows that the citation was served 'through M. A. Shumard, its agent in person. ' On October 30, 1906, the defendant filed a petition to remove the case from the state court into this court, which was not sworn to, until November 8th, on which day the bond for the removal of the cause was given. On November 9th the state judge gave the usual order to remove the case into this court. There the matter stood until January 7, 1907, when the clerk made and signed a certificate of the transcript. This certificate was completed on January 9, 1907, and the transcript was taken by the attorney of the plaintiff and filed in this court on January 9, 1907. The parties admit that the plaintiff ordered the transcript, paid for it, and filed it in this court. On January 23, 1907, Mr. W. O. Hart, a member of the bar of this court, as amicus curiae, filed a statement that receivers had been appointed, William C. Niblack and John C. Davey, Jr., to the defendant the German Insurance Company of Freeport, Ill., in the civil district court for the parish of Orleans; that they had qualified as such; that no appeal had been taken from the judgment; and that said receivers had not been made parties to this petition. Wherefore, he asked the court to take notice of the said proceeding. On January 31, 1907, the plaintiff entered a default in this court against the defendant. On February 2, 1907, the receivers for the defendant company filed a motion in this court requiring 'that the plaintiff do show cause on Saturday, February 9, 1907, at 11 o'clock a.m., why the default herein entered should not be set aside because improvidently entered, for the reason that, though the plaintiff has recognized movers as receivers of the defendant by proceedings in this court, it has not made them parties to this proceeding; and on the further ground that this court is without jurisdiction in this case. ' On the same day the attorneys for the receivers filed a motion that the plaintiff 'do show cause on Saturday, February 9, 1907, at 11 o'clock a.m., why this case should not be remanded to the civil district court for the parish of Orleans on the ground that this court is without jurisdiction, because neither the plaintiff nor the defendant in this case is an inhabitant of the district in which this court holds sessions and over which it has territorial jurisdiction, and, as this case could not have been brought up originally in this court, so this court cannot acquire jurisdiction by removal. ' The parties admit that the property which was attached in this suit in the state court had already been previously attached in another suit in the state court which has not been brought by removal into this court. It is also admitted that receivers have been appointed and qualified by the state court and have taken possession of all the property belonging to the defendant in the state of Louisiana.

1. As to the default: The statute provides:

'That in all causes removable under this act, if the term of the Circuit Court to which the same is returnable then

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