Hansen v. Pacific Coast Asphalt Cement Co.
| Decision Date | 02 July 1917 |
| Docket Number | 9786. |
| Citation | 243 F. 283 |
| Parties | HANSEN v. PACIFIC COAST ASPHALT CEMENT CO. |
| Court | U.S. District Court — Southern District of California |
B. F Thomas, of Santa Barbara, Cal., for plaintiff.
Canfield & Starbuck, of Santa Barbara, Cal., and C. W. Durbrow, of San Francisco, Cal., for defendant.
This action was commenced in the superior court of the state of California, in and for the county of Santa Barbara, and the proceedings therein progressed until a decree was entered June 26, 1916. Thereafter defendant applied, under section 473 of the Code of Civil Procedure, for leave to answer; the application having been made within a year after the rendition of said decree.
The court made an order on February 7, 1917, allowing the defendant to answer within 10 days from that date. On February 13 1917, the defendant filed a petition and bond to remove the cause to this court. On the same date, to wit, February 13 1917, defendant filed an answer and cross-complaint, seeking a personal judgment against the plaintiff. The record presented to this court shows that the answer and cross-complaint appear in the record following the petition and bond for removal. The court cannot assume from this fact that the cross-complaint was filed subsequent to the petition for removal. The parties have discussed the case as though it were filed subsequent to filing the petition and bond. It does not seem to make any difference whether it was filed contemporaneous with the petition and bond or subsequently. It would seem, however, that the court should consider that all three of the papers were filed at the same time.
Only the defendant has a right to remove a case from a state court to this court. Judicial Code, Sec. 28. The question presented upon this motion to remand is whether or not the case was removed here by a defendant. The only difference between a counterclaim and a cross-complaint, so far as the record here is concerned, in the California practice, is that, in a cross-complaint filed by a defendant, the plaintiff is required to answer. No answer is necessary to a counterclaim. C.C.P. Secs. 437, 438, 442, 626, 666.
There is a conflict of authority concerning the right of removal by plaintiff, where defendant files a cross-bill or counterclaim. Authorities are collected in 2 Foster's Federal Practice (5th Ed.) Sec. 542, at page 1808. Some of the cases which deny the right of a plaintiff to remove assign as the reason that the plaintiff invoked jurisdiction of the court, knowing that a counterclaim or cross-bill might be filed. These cases are distinguished, where it is said that, if the federal court did not have jurisdiction of the cause of action which the plaintiff filed, the principle just stated did not apply, and therefore that the plaintiff could remove the case, where the cross-complaint...
To continue reading
Request your trial
-
Trullinger v. Rosenblum
...This latter is the element distinguishing Lee v. Continental Insurance Co., supra C.C., 74 F. 424. "In Hansen v. Pacific Coast Asphalt, etc., Co., D.C.Cal., 243 F. 283, 284, the defendant contemporaneously with filing a cross-complaint in the state court filed its petition for removal. In r......
-
Sheets v. Shamrock Oil & Gas Corporation
...Ellis & Co., C.C.Ark. 1904, 129 F. 482; Hagerla v. Mississippi River Power Co., D.C.Iowa 1912, 202 F. 771; Hansen v. Pacific Coast Asphalt Cement Co., D.C.Cal.1917, 243 F. 283, 284; Consolidated Textile Corporation v. Iserson, D.C.N.Y.1923, 294 F. 289; Pierce v. Desmond, D.C.Minn.1926, 11 F......
-
Haney v. Wilcheck, 48
...the counterclaim was compulsory. This latter is the element distinguishing Lee v. Insurance Co., supra. In Hansen v. Pacific Coast Asphalt, etc., Co., D.C.Cal., 243 F. 283, 284, the defendant contemporaneously with filing a cross-complaint in the state court filed its petition for removal. ......
-
Acosta v. Direct Merchants Bank, 02-CV-1187-W(LAB).
...to take the action ... constitutes a waiver of the defendant's right to remove to federal court."). In Hansen v. Pacific Coast Asphalt Cement Co., 243 F. 283 (S.D.Cal.1917) the court expressly held that "[b]y filing [a] cross-complaint, the defendant became a plaintiff, and invoked the juri......