Hamilton v. Hayes Freight Lines
| Decision Date | 13 February 1952 |
| Docket Number | No. 904.,904. |
| Citation | 102 F. Supp. 594 |
| Parties | HAMILTON v. HAYES FREIGHT LINES, Inc. |
| Court | U.S. District Court — Eastern District of Kentucky |
Shumate & Shumate, Irvine, Ky., for plaintiff.
Smith, Reed & Leary and Elmer Gaines Davis, Jr., all of Frankfort, Ky., Redwine & Redwine, Winchester, Ky., E. B. Rose, Beattyville, Ky., for defendant-petitioner.
This case is submitted upon the plaintiff's motion to remand it to the State Court from which it was removed by a petition filed by defendant in this Court on January 18, 1952. The only question presented is whether the petition for removal was timely filed under the second paragraph of § 1446(b), Title 28 U.S.C. (revised), which provides: "If the case stated by the initial pleading is not removable, a petition for removal may be filed within twenty days after receipt by the defendant, through service or otherwise, of a copy of an amended pleading, motion, order or other paper from which it may first be ascertained that the case is one which is or has become removable."
It appears from the petition for removal that the action was originally filed in the Circuit Court of Estill County, Kentucky, and, pursuant to trial and verdict of a jury, in May 1950 judgment was rendered against defendant, the petitioner Hayes Freight Lines, Inc., and an appeal, which has not yet been disposed of, was immediately prosecuted by defendant to the Court of Appeals of Kentucky.
The pleadings in the original action stated a claim for damages in the sum of $50,000 for joint and concurrent negligence charged against the petitioner, then and now a citizen of the State of Illinois, and one John D. Winn, a citizen and resident of the State of Kentucky, who was named as joint defendant, thus precluding removal on the ground of diversity of citizenship.
It further appears from the petition for removal that in March 1951 the petitioner filed an action in the Circuit Court of Estill County seeking to have the judgment of May 1950 vacated and set aside, a proceeding authorized by sections 518 and 520 of the Kentucky Civil Code of Practice, on the ground that several weeks prior to the trial and judgment of May 1950 the plaintiff Harold Ray Hamilton and petitioner's co-defendant John D. Winn agreed upon a settlement of the controversy as between them pursuant to which John D. Winn was released and discharged from all liability to the plaintiff. The settlement was not disclosed to the trial court nor to this petitioner but was actively and purposely concealed from them, and was not discovered by petitioner until shortly before the action was filed to vacate the judgment. By reason of the deception and fraud thus practiced upon the Court and the defendant, the petitioner claimed it was deprived of the right of removal as well as other defenses which would have been available to it. On August 9, 1951, the plaintiff filed his answer in the proceeding to vacate the judgment in which he disclosed the secret settlement with the defendant John D. Winn made prior to the trial. A reply was filed by Hayes Freight Lines, Inc., on September 11, 1951. On January 2, 1952, the Court entered judgment vacating the prior judgment.
Section 520 of the Kentucky Civil Code provides that on such petition to vacate judgment "the proceedings shall be the same as those in the action in which the judgment was rendered." The proceeding thus authorized by the Kentucky Civil Code of Practice, prosecuted in the same court and between the same parties, despite its separate and independent appearance from a procedural aspect, is merely a statutory substitute for the old practice by bill of review and is so clearly incidental and ancillary to the original action as to be, in purpose and effect, a continuation of it. Duncan v. Allender, 110 Ky. 828, 831-832, 62 S. W. 851, Wilson, Guardian v. Jackson, 193 Ky. 101, 235 S.W. 28. The answer filed in this collateral proceeding fulfills the requirement of the present removal statute as to a pleading or other paper "from which it may first be ascertained that the case is one which is or has become removable". The exercise of the right of removal when thus ascertained is subject to the condition that "within twenty days after receipt by the defendant, through service or otherwise, of a copy" of such paper, the party or parties desiring to remove the action "shall file in the district court of the United States for the district and division within which such action is pending a verified petition containing a short and plain statement of the facts which entitle him or them...
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...district court does not have authority to elongate this time span pursuant to either Fed. R.Civ.P. 6(b), Hamilton v. Hayes Freight Lines, 102 F.Supp. 594, 597 (E.D.Ky.1952), or Fed.R.Civ.P. 6(e). E.g., Ross v. Barrett Centrifugals, 580 F.Supp. 1510, 1512 (D.Me.1984); Youngson v. Lusk, 96 F.......
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