Harley v. Firemen's Fund Ins. Co.

• Decision Date: 22 October 1913
• Docket Number: 2394.
• Court: U.S. District Court — Western District of Washington
• Parties: HARLEY v. FIREMEN'S FUND INS. CO.

245 F. 471

HARLEY v. FIREMEN'S FUND INS. CO.

No. 2394.

United States District Court, W.D. Washington, Northern Division.

October 22, 1913

Hastings & Stedman, of Seattle, Wash., for plaintiff.

Bogle Graves, Merritt & Bogle, of Seattle, Wash., for defendant.

NETERER District Judge.

This is an action commenced in the state court in which the plaintiff alleges, in substance, that prior to December 27, 1910, the Kitsap County Transportation Company was the owner of a certain steamship, known as Kitsap; that said steamship was insured against fire and marine perils by the defendant; that during the month of December, 1910, the said steamship collided with the steamship Indianapolis in the waters of Elliott Bay, which collision caused said steamship Kitsap to sink in the waters to the ocean bed; that thereafter the Elliott Bay Dry Dock Company, a corporation, entered into a contract with the defendant to raise said steamship Kitsap for 60 per cent. of the value of the vessel when so raised as its compensation; $35,000 was determined to be the value of said steamship when raised and that from the said sum should be deducted the cost of repairing said steamship; that the cost of repairing said steamship was $9,500; that the net salved value of said steamship was $25,500; that the Elliott Bay Dry Dock Company became entitled to $15,300; that it received from the defendant the sum of $12,350, leaving a balance of $2,950 owing; that for a valuable consideration, and prior to the commencement of this action, the Elliott Bay Dry Dock Company sold, assigned, and transferred the amount due from the defendant to it on account of the performance of said contract to this plaintiff, who is now the owner and holder thereof. The defendant, within the time required by law filed its petition for removal to this court, in which it alleges, in substance, that the matter in dispute exceeds exclusive of interest and costs, the sum of $3,000; that the controversy is between citizens of different states, plaintiff being a citizen of this judicial district, and the defendant a citizen of the state of California; that the plaintiff seeks to recover a balance claimed to be due under the contract referred to. It is further stated that the amount bid for repairing said vessel was $12,313, but that the company claimed that $8,068 was the amount for repairing the vessel, and the balance was for replacing the furniture and equipment; that only $8,068 should be deducted from said agreed value of $35,000, which would leave $26,932 as the salved value of which the Elliott Bay Dry Dock Company should receive $16,159.20; that on the 19th day of September, 1911, the Elliott Bay Dry Dock Company commenced an action in the state court against the Kitsap County Transportation Company, in which it was sought to recover $3,809.20; that said cause was tried on the 18th day of December, 1912, and that the testimony introduced upon said trial proved that there was no balance due to the said Elliott Bay Dry Dock Company on said salved contract, but that it had been overpaid the sum of $158.40; that after the evidence of both parties had been introduced at the trial, and before said cause was submitted to the jury or judgment entered, the said Elliott Bay Dry Dock Company moved the court for a dismissal of said action, which motion was granted; that thereafter on the 26th day of December, 1912, the defendant commenced a suit in admiralty in the United States District Court against the said Elliott Bay Dry Dock Company to recover the sum of $158.40; that the statement of the plaintiff in his complaint in which he states that the cost of repairing the steamship was $9,500, and the amount to which the Elliott Bay Dry Dock Company became entitled under its salvage contract to be $15,300, leaving a balance of $2,950, is fraudulently made for the purpose of attempting to deprive the defendant of its right to remove said cause to this court.

A bond was filed with the petition for removal, but the judge of the state court denied the said petition. Thereafter the defendant obtained a certified copy of the record and filed the same in the office of the clerk of this court, and thereafter filed its answer to the said complaint, and on the 27th day of February, 1911, filed a motion for judgment as prayed for in its counterclaim in said answer in the sum of $158.40 against the plaintiff. On March 1, 1913, the plaintiff filed objections to the judgment on the pleadings under special appearance for that purpose, as follows: 'Comes now the plaintiff in the above-entitled cause, and, without entering a general appearance herein, and limiting his appearance to the purpose of this objection, and in resistance to the pretended motion of the defendant for judgment on the pleadings herein, and not consenting to the jurisdiction of this court, and entering a special appearance only for the purpose of this objection, and reserving all objections to the jurisdiction of this court to entertain this cause, hereby objects to the consideration of defendant's pretended motion, as it appears that this court has no jurisdiction of this cause, and further that it appears that this action is now at issue in the superior court of King county, and is set for trial before a jury in said court on April 28, 1913, all of which appears from the record in this cause and from the affidavit of H. H. A. Hastings hereto attached.'

Attached to the objections is an affidavit. After reciting the history of the proceedings in removal, and the order denying the same, the affidavit recites:

'That thereafter the plaintiff filed and served a reply to said answer, which reply only controverted the allegations of the answer, and thereafter the plaintiff filed its demand for a jury trial and paid the jury fee, and that said cause is now regularly assigned for trial before a jury in department No. 3 of the superior court of King county, Wash.'

On March 3d the following order was entered by the then presiding judge:

'The above-entitled cause having come duly and regularly on to be heard before the court, upon the motion of defendant herein for judgment on the pleadings against the said plaintiff, for the sum of one-hundred fifty-eight and 40/100 dollars ($158.40), together with its costs and disbursements as prayed for in the answer herein, said defendant appearing by Messrs. Bogle, Graves, Merritt & Bogle, its attorneys herein, and said plaintiff appearing specially by Messrs. Hastings & Stedman, his attorneys, in opposition to said motion; and it appearing to the court that said action was commenced in the superior court for King county, state of Washington, by the service of summons and complaint on January 8, 1913, and that thereafter, and within the time provided by law, the said defendant duly filed in said superior court of King county, Wash., its petition and bond for a removal of said cause into this court, and that said petition and bond were in all things regular and sufficient to entitle said defendant to a removal of said cause into this court from said superior court; and it further appearing to the court that thereafter, and on the 4th day of February, 1913, the said defendant duly filed in the office of the clerk of this court a transcript on removal of said cause, which transcript had been duly issued out of the office of the clerk of said superior court, and on said 4th day of February, 1913, said defendant caused due written notice of the filing of such transcript on removal to be served upon said plaintiff as provided by law; and it further appearing to the court that thereafter, and on the 13th day of February, 1913, said defendant duly served its answer to the complaint herein upon the said plaintiff, which answer was duly filed in this court on the 13th day of February, 1913, and that in said answer so served and filed herein in said cause, it is alleged as an affirmative defense and counterclaim to the cause of action alleged in the complaint herein that only the sum of twelve thousand one hundred ninety-one and 60/100 dollars ($12,191.60) ever became due or payable upon the contract alleged in the complaint herein, and upon which the cause of action alleged in said complaint is based; and it being further alleged in said affirmative defense and counterclaim that said defendant, prior to the commencement of this action, had advanced and paid the sum of twelve thousand three hundred and fifty dollars ($12,350.00) on account of said contract, which payment is admitted in the complaint herein, and the said defendant having alleged in said affirmative defense and counterclaim that such payment was an overpayment, through mutual mistake of the parties to said contract, in the sum of one hundred fifty-eight and 40/100 dollars ($158.40), for which sum of one hundred fifty-eight and 40/100 dollars ($158.40) said defendant prayed judgment against the said plaintiff; and it further appearing to the court that no reply in this action has ever been served or filed to said answer, or the affirmative defenses or counterclaim therein contained, within the time provided by law, nor has the time to file such reply ever been extended, or any application ever been made for an extension of time in which to serve or file such reply; and it further appearing to the court that this cause was duly and regularly removed into this court from said superior court of King county, Wash., and that this court acquired, ever since has had, and now has, jurisdiction of said cause, and the subject-matter thereof, and the parties thereto, and no motion to remand said cause has ever been made, and that the said motion for judgment on the pleadings in favor of said defendant and against said plaintiff, should be granted, and

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