Haney v. Wilcheck, 48

• Decision Date: 18 April 1941
• Docket Number: 5,No. 48,and 45,4,48
• Citation: 38 F. Supp. 345
• Parties: HANEY v. WILCHECK et al. ALTMAYER v. HANEY (two cases). WILCHECK v. HANEY.
• Court: U.S. District Court — Western District of Virginia

38 F. Supp. 345

HANEY v. WILCHECK et al.

ALTMAYER v. HANEY (two cases).

WILCHECK v. HANEY.

Nos. 48, 5, 4, and 45, Civil.

District Court, W. D. Virginia.

April 18, 1941.

Walker C. Williams, of Charlottesville, Va., and Walter M. Evans, of Richmond, Va., for plaintiff in No. 48 and for defendant in Nos. 4, 5, and 45.

Walsh & Waddell, of Charlottesville, Va., and Robert G. Butcher, of Richmond, Va., for plaintiffs in Nos. 4 and 5 and for the defendants in No. 48.

Hunton, Williams, Anderson, Gay & Moore, of Richmond, Va., for plaintiff in No. 45 and for defendants in No. 48.

PAUL, District Judge.

The matters before the court in the above styled cases have arisen as follows: On October 16, 1940, an automobile (a Chevrolet) owned by Phillip H. Haney was being driven by him along a highway in Greene County, Virginia, and was in collision with another automobile (a LaSalle), which was owned by Jay P. Altmayer of Mobile, Alabama, but which was occupied at the time by Marvin C. Altmayer and Antoinette P. Altmayer, parents of Jay P. Altmayer, and by John Wilcheck, the latter of whom was driving the car. Jay P. Altmayer, owner of this second car, was not present in the car at the time of the accident. He had, some time previously, loaned the car to his mother, Antoinette P. Altmayer, for use on a visit to New York and, the visit having ended, Mr. and Mrs. Altmayer were in course of their return to their home in Alabama when the accident occurred. Before leaving New York, Wilcheck had been employed as chauffeur to drive the car back to Alabama.

All of the Altmayers are citizens of Alabama, Wilcheck is a citizen of New York, and Haney, the other party to the accident, is a citizen and resident of Virginia.

As a result of this accident, Haney, on January 4, 1941, instituted suit in the Circuit Court of Greene County, Virginia, for $2,500 for personal injuries and damages to his automobile, in which he named as defendants all of the occupants of the Altmayer car and also J. P. Altmayer. This proceeding was by notice of motion under the Virginia statute, Code Va. § 6046, and the notice was returnable to January 20, 1941.

On January 13, 1941, Marvin C. Altmayer and Antoinette P. Altmayer instituted their separate suits against Haney in the Charlottesville division of this (the U. S. District) Court, claiming damages for personal injuries in the amounts of $15,000 and $20,000 respectively. On January 17, 1941, Wilcheck instituted suit against Haney in the Harrisonburg division of this court for personal injuries in the amount of $20,000. All of these suits, of course, grew out of the same accident and represent the not unusual situation wherein each party to an automobile collision blames the other for negligence.

On January 20, 1941, the return day of Haney's notice of motion, the Altmayers and Wilcheck appeared in the state court by counsel and each filed in writing a plea of not guilty and also filed counterclaims or cross demands against Haney. The counterclaim of Jay P. Altmayer was for $1,750 for damage to the LaSalle car owned by him and in which his parents and Wilcheck had been riding. The counterclaims of Wilcheck and the two elder Altmayers were in the same amounts respectively for which they had sued in this court. The pleas and counterclaims of each of the defendants in the state court were embodied in the same writing and simultaneously with their filing, Wilcheck, Marvin C. Altmayer and Antoinette P. Altmayer submitted their motion to remove the case to the federal court, accompanied by the appropriate bond. Notice of the petition for removal had been served on counsel for Haney prior to January 20th, and on that day they appeared and objected to the removal.

The order entered in the state court on January 20, 1941, recites, so far as is pertinent here, that the parties appeared by counsel and that the notice of motion, having been duly executed by service upon the defendants, was docketed; that the defendants filed their respective pleas of not guilty and their counterclaims. That the defendants Wilcheck, Marvin C. Altmayer and Antoinette P. Altmayer filed their petition to remove the cause to the federal court and tendered therewith the usual removal bond; that the plaintiff objected to the petition for removal and was given leave to file his objections in writing. The order concluded by taking the petition for removal under advisement.

On January 29, 1941, the judge of the state court entered an order removing the case to the Harrisonburg division of this court, and on February 12, 1941, the record from the state court was received and filed in this court. The order of removal entered by the state court on January 29th recites that the defendants had appeared "specially and solely for the purpose of removing", etc., but no significance is attributed to this language in so far as it may be deemed to vary from the facts attending their appearance, which have been hereinbefore recited and are not in dispute.

On January 29th, the same day on which the order of removal was entered and presumably before counsel for Haney had knowledge of it, they filed motions to dismiss the cases brought by Marvin C. Altmayer and Antoinette P. Altmayer in this court on the ground that the same cause of action was being litigated in the Circuit Court of Greene County. On February 3rd, Haney filed a similar motion of dismissal as to the suit brought against him by Wilcheck in this court. On February 21st, Haney filed his motion to remand to the state court the action removed therefrom.

Because of the interrelation of the motion to remand one case and to dismiss the others, the motions have been heard together. It is true, technically speaking, that since Haney's suit has been removed here and is not now pending in the state court the grounds on which are based the motion to dismiss the cases brought here do not exist at this moment. But if the motion to remand be granted, they will again come into existence and it therefore seems proper to consider both motions at this time.

The Motion to Remand

(Haney v. Wilcheck et al.)

The motion to remand the case is based primarily on three grounds: (1) That the amount necessary to give this court jurisdiction is not involved, in that Haney's claim was for $2,500 only, a sum insufficient to give this court jurisdiction, and that the filing of the counterclaims does not alter this situation; (2) that when the defendants appeared in the state court and filed counterclaims, they submitted themselves to the jurisdiction of that court by invoking its affirmative action in their behalf and thereby waived any rights they might otherwise have had to a removal; (3) that the petition for removal was not submitted by all of the defendants, Jay P. Altmayer not having been a party thereto. It is the first and the second of the grounds mentioned — particularly the first — which have been most emphasized and most earnestly argued.

In their petition for removal addressed to the state court and likewise in their argument here in opposition to the motion to remand, the defendants take the broad position that the claims of the parties against each other grow out of the same happening and that there is but one controversy; and that this controversy involves not only the claim of Haney for $2,500 but also the claims of defendants against Haney for amounts aggregating $55,000. In other words, that a single happening has taken place as a result of which it must be determined whether the defendants are liable to Haney for $2,500 or any part thereof or whether Haney is liable for the amounts, or any part thereof, claimed by defendants; and that, therefore, "the amount in controversy" is greatly in excess of $3,000 and entitles them as non-resident defendants to remove to this court.

Examination of the record in the state court shows the petition for removal to allege: "That the matter in controversy in said suit exceeds the sum of Three Thousand Dollars * * * in this, that each of said defendants * * * has a claim against said Phillip B. Haney, plaintiff, which arises out of the occurrence that is the subject matter of the plaintiff's claim which claim of said Marvin C. Altmayer is in the sum of Fifteen Thousand Dollars * * * (reciting the claims of other defendants) * * *; that suits have been instituted by each of said parties claimant against said Phillip B. Haney and are now pending in the District Court of the United States for the Western District of Virginia." The petition further alleged that Haney's suit was not instituted in good faith but in an effort to "evade and avoid the jurisdiction of the United States District Court which is the tribunal to which Marvin C. Altmayer, Antoinette P. Altmayer and John Wilcheck are entitled to submit their respective claims for adjudication".

The petition for removal, containing the above allegations, was drafted, and notice that it would be presented was given, several days before January 20th, which date was the return day of the notice of motion in the state court and, by the usual Virginia practice, the first day on which a plea could be entered or a motion to remove be heard. It appears, therefore, that the grounds of the petition to remove were formulated before any counterclaims were filed in the state court and, as shown by the language of the petition, rested on the assertion that the suits then pending in the federal court, in which defendants were plaintiffs, involved the same controversy. On January 20th, the defendants appeared in the state court, pleaded to Haney's suit against them, filed counterclaims as heretofore related, and simultaneously submitted their petition to remove.

The fact that the grounds on which the petition to remove was based were alleged prior to the assertion of any counterclaim and at a time when the suit in the state court involved only Haney's claim for $2,500 is, in my mind, not important in the ultimate...