Hager v. New York Oil Co.

• Decision Date: 11 July 1927
• Docket Number: No. 6039.,6039.
• Parties: HAGER et al. v. NEW YORK OIL CO. et al.
• Court: U.S. District Court — Western District of Washington

20 F.2d 944 (1927)

HAGER et al. v. NEW YORK OIL CO. et al.

No. 6039.

District Court, W. D. Washington, S. D.

July 11, 1927.

Geo. W. Korte and Hartman & Hartman, all of Seattle, Wash., and W. H. Abel, of Montesano, Wash., for plaintiffs.

John C. Hogan, of Aberdeen, Wash., and Roberts & Skeel, of Seattle, Wash., for defendants.

CUSHMAN, District Judge.

Plaintiffs move to remand the suit, which is one removed because of alleged diversity of citizenship. Plaintiffs also have answered the petition for removal, pleading in abatement that the time for petitioning for removal had expired before the filing of the petition. The motion to remand, and the trial of the issues raised by the answer and plea, were heard together.

The plaintiffs are citizens of the state of Washington. The defendant New York Oil & Gas Company, it is alleged in the complaint, is a corporation of the state of Washington, and the defendant New York Oil Company, the petition for removal alleges, is a corporation organized under the laws of the state of Wyoming.

The summons and complaint were served on December 30, 1926. On January 7, 1927, the defendants filed a motion to quash the service of the summons, on the ground that the individual served was not a person upon whom a valid service could be made, alleging that he was not an agent, cashier, or secretary of either of the defendant companies.

It appears from the transcript of the minutes of the clerk of the superior court that on February 25, 1927, the court at the conclusion of the trial announced the denial of the motion to quash; that its written order to the same effect, dated March 1, 1927, was filed March 4, 1927. On March 2, 1927, the New York Oil Company, in the Supreme Court of the state, secured an alternative writ of prohibition, commanding that the superior court refrain from any further proceeding in said action until the further order of the court; the ground alleged upon securing such writ being that such company was not doing business in the state of Washington, and that the service of the summons was invalid. On May 5, 1927, the Supreme Court filed its finding and order, setting aside the alternative writ and denying the permanent writ. It appears that the defendant did not learn of this ruling until May 9th, whereupon it petitioned the Supreme Court for rehearing, under the rules of the court allowing 30 days for that purpose. The order of the Supreme Court was filed in the superior court June 3, 1927. The petition for rehearing was denied by the Supreme Court June 14, 1927. On May 11, 1927, the petition for removal was filed in the superior court, which removal the superior court ordered, on the 13th of May, 1927.

Sections 221, 222, 241, and 411 of Remington's Compiled Statutes of Washington, 1922, provide:

"Sec. 221. The summons must be subscribed by the plaintiff or his attorney, and directed to the defendant requiring him to answer the complaint, and serve a copy of his answer on the person whose name is subscribed to the summons, at a place within the state therein specified in which there is a post office, within twenty days after the service of the summons, exclusive of the day of service.

"Sec. 222. 1. The summons shall also contain * * *

"2. A direction to the defendants summoning them to appear within twenty days after service of the summons, exclusive of the day of service, and defend the action;

"3. A notice that, in case of failure so to do, judgment will be rendered against them, according to the demand of the complaint. * * *"

"Sec. 241. A defendant appears in an action when he answers, demurs, makes any application for an order therein, or gives the plaintiff written notice of his appearance. After appearance a defendant is entitled to notice of all subsequent proceedings; but when a defendant has not appeared, service of notice or papers in the ordinary proceedings in an action need not be made upon him. Every such appearance made in an action shall be deemed a general appearance, unless the defendant in making the same states that the same is a special appearance."

"Sec. 411. Judgment may be had if the defendant fail to answer to the complaint, as follows: * * *

"In other actions the plaintiff may, upon the like proof, apply to the court after the expiration of the time for answering, for the relief demanded in the complaint. * * * If the defendant give notice of appearance in the action before the expiration of the time for answering, he shall be entitled to five days' notice of the time and place of application to the court for the relief demanded in the complaint. * * *"

Rule 6 of the Rules of the Superior Courts of the State of Washington in part provides:

"* * * (e) All motions, demurrers, or other challenges to any pleading shall be made and presented to the court at one and the same time, the grounds therefor being separately stated, and shall be attached and properly indorsed under one cover; and no motion, demurrer or other challenge directed to the same pleading shall thereafter be heard or considered except by special permission of the court. If the first challenge to a pleading be a demurrer, such demurrer shall be deemed a waiver of all grounds for any motion directed to the same pleading; and failure to file a demurrer at the time of filing any motion shall be deemed a waiver of the right to interpose a demurrer, except that the objection that the court has no jurisdiction or that the complaint does not state facts sufficient to constitute a cause of action may be made at any stage of the proceedings.

"(f) Special appearance made by motion or demurrer shall suspend the foregoing rule; but if such special appearance by motion or demurrer be denied, the party so appearing shall immediately thereupon serve and file any further motions or demurrers he may desire to make to the pleading and the court shall immediately thereupon hear the same."

Plaintiffs cite: Heller v. Ilwaco M. & L. Co. (C. C.) 178 F. 111; Martin, Adm'r, v. Railroad Co., 151 U. S. 673, 14 S. Ct. 533, 38 L. Ed. 311; Goldey v. Morning News, 156 U. S. 518, 15 S. Ct. 559, 39 L. Ed. 517; Railway Co. v. Brow, 164 U. S. 271, 17 S. Ct. 126, 41 L. Ed. 431; Powers v. Railway, 169 U. S. 92, at page 98, 18 S. Ct. 264, 42 L. Ed. 673; Fidelity & Casualty Co. v. Hubbard (C. C.) 117 F. 949; Bramwell v. Owen (D. C.) 276 F. 36, at page 38; Fidelity Trust, etc., Co. v. Newport News, etc., Co. (C. C.) 70 F. 403; Lederer v. Sire (C. C.) 105 F. 529; R. Co. v. Willard, 220 U. S. 414, 31 S. Ct. 460, 55 L. Ed. 521; McAllister v. Ry., 243 U. S. 302, 37 S. Ct. 274, 61 L. Ed. 735; G. N. Ry. v. Alexander, 246 U. S. 276, 38 S. Ct. 237, 62 L. Ed. 713; Lathrop v. Railroad Co. (C. C.) 135 F. 619; O'Brien v. Construction Co. (C. C.) 107 F. 338; Gaugler v. Ry. (D. C.) 197 F. 79; Richardson v. Water Power Co. (D. C.) 209 F. 949; Niccum v. Assurance Co. (D. C.) 17 F.(2d) 160; Wolff v. Archibald (C. C.) 14 F. 369; Woolridge v. McKenna (C. C.) 8 F. 650; Dalton v. Insurance Co. (C. C.) 118 F. 882; Santa Clara County v. Mach. Co. (C. C.) 159 F. 751; Shane v. R. Co. (C. C.) 150 F. 801; General Inv. Co. v. R. Co., 260 U. S. 261, at page 267, 43 S. Ct. 106, 67 L. Ed. 244; Remington v. Railroad Co., 198 U. S. 95, 25 S. Ct. 577, 49 L. Ed. 959; Yellowstone, etc., Bank v. Rosenbaum Bros. & Co. (D. C.) 277 F. 69; Nickels v. Pullman Co. (D. C.) 268 F. 610, at page 618; State ex rel. N. Y. Oil Co. v. Superior Court (Wash.) 255 P. 1030; section 29, Babbitt's Judicial Code; Meeker v. Johnson, 5 Wash. 718, 32 P. 772, 34 P. 148; Collins Mfg. Co. v. Wickwire Spencer Steel Co. (D. C.) 11 F.(2d) 196; Board of Com'rs v. Hulse (D. C.) 17 F.(2d) 785; Kraus v. R. Co. (C. C. A.) 16 F.(2d) 79; Solomon v. Pa. R. Co. (D. C.) 240 F. 231; Pilgrim v. Ætna Life Ins. Co. (D. C.) 234 F. 958; Ry. Co. v. Daughtry, 138 U. S. 298, 11 S. Ct. 306, 34 L. Ed. 963; Olds v. City Trust, etc., Co. (C. C.) 114 F. 975; Tinker v. Board (D. C.) 292 F. 863; Scoggins v. Railroad Co. (D. C.) 292 F. 162; Lee v. Insurance Co. (D. C.) 292 F. 408; Adams v. Puget Sound Traction, Light & Power Co. (D. C.) 207 F. 205; Heller v. Lumber Co. (C. C.) 178 F. 111; Garvey v. Compania, etc. (D. C.) 222 F. 732; Austin v. Gagan (C. C.) 39 F. 626, 5 L. R. A. 476; Fox v. Ry. (C. C.) 80 F. 945; Gates Iron Wks. v. Pepper & Co. (C. C.) 98 F. 449; Platt v. Bradner, 131 Wash. 573, 230 P. 633; Richardson v. Power Co. (D. C.) 209 F. 949.

Defendants cite: State ex rel. N. Y. Oil Co. v. Superior Court (Wash.) 255 P. 1030; Rogers v. Penobscot Mining Co. (C. C. A.) 154 F. 606; Geer v. Mathieson Alkali Wks., 190 U. S. 428, 23 S. Ct. 807, 47 L. Ed. 1122; Sioux City Terminal, etc., Co. v. Trust Co. of N. A. (C. C. A.) 82 F. 124; Higgins v. B. & O. R. Co. (C. C.) 99 F. 640; Harter v. Kernochan, 103 U. S. 562, 26 L. Ed. 411; Removal Cases, 100 U. S. 457, 25 L. Ed. 593; Lucas v. Milliken (C. C.) 139 F. 816; Moloney v. Cressler (C. C. A.) 210 F. 104, 109; Stimson v. United Wrapping Mach. Co. (C. C.) 156 F. 298; Mecke v. Valley Town Mineral Co. (C. C. A.) 89 F. 209; Barney v. Latham, 103 U. S. 205, 26 L. Ed. 514; Cella, Adler & Tilles v. Brown (C. C.) 136 F. 439; Old Dominion Oil Co. v. Superior Oil Corp. (D. C.) 283 F. 636; Ferry v. Wiggins (D. C.) 287 F. 421; Hough v. Societe Electrique, etc. (D. C.) 232 F. 635; Youtsey v. Hoffman (C. C.) 108 F. 693; Wheeling Creek Gas, etc., v. Elder (C. C.) 170 F. 215; Mfg. Commercial Co. v. Brown Alaska Co. (C. C.) 148 F. 308; Buck v. Felder (D. C.) 196 F. 419; New England Water Works Co. v. Loan & Trust Co. (C. C. A.) 136 F. 521; Powers v. Chesapeake, etc., R. Co., 169 U. S. 92, 18 S. Ct. 264, 42 L. Ed. 673; Yarde v. Baltimore & Ohio R. Co. (C. C.) 59 (57) F. 913; Mattoon v. Reynolds (C. C.) 62 F. 417; Fritzlen v. Boatmen's Bk., 212 U. S. 364, 29 S. Ct. 366, 53 L. Ed. 551; Haynes' Adm'r v. C., N. O. & T. P. R. Co., 145 Ky. 209, Ann. Cas. 1913B, 719, 140 S. W. 176, 180; Robert v. Pineland Club (C. C.) 139 F. 1001; Donahue v. Calumet Fire-Clay...