Hiram Remington v. Central Pacific Railroad Company, No. 460

• Court: United States Supreme Court
• Writing for the Court: Holmes
• Citation: 25 S.Ct. 577,49 L.Ed. 959,198 U.S. 95
• Parties: HIRAM REMINGTON, Plff. in Err. , v. CENTRAL PACIFIC RAILROAD COMPANY
• Docket Number: No. 460
• Decision Date: 17 April 1905

198 U.S. 95 25 S.Ct. 577 49 L.Ed. 959 HIRAM REMINGTON, Plff. in Err.,

v.

CENTRAL PACIFIC RAILROAD COMPANY.

No. 460. Submitted February 27, 1905. Decided April 17, 1905.

Page 96

Mr. James G. Flanders for plaintiff in error.

Mr. Maxwell Evarts for defendant in error.

Mr. Justice Holmes delivered the opinion of the court:

This is a writ of error to the circuit court upon a judgment dismissing the action for want of jurisdiction of the defendant. That question is certified from the court below.

The action was brought in the supreme court of the state of New York on April 10, 1903, by serving a summons on a director of the defendant in error, the railroad. On April 22 the plaintiff's attorney gave twenty days' additional time to the defendant in which to appear generally or specially, or to move to vacate the summons. On May 11 a firm of lawyers gave notice of a motion to set aside the service, and also that they appeared only for that purpose. An agreement was made giving the defendant time to appear after the motion was decided. The motion was not decided until September 28, 1903, when it was denied, and an order to that effect was entered on October 2. The defendant's attorneys filed a notice of appeal on October 15, and the next day gave notice of a motion to stay proceedings on the order, to be made on Octo-

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ber 24. On the same October 16 the plaintiff made an affidavit in which it appeared that the sum which he sought to recover was more than $2,000. This contained the first definite notice to defendant, as no declaration had been filed. An order to take plaintiff's deposition and this affidavit were served on the defendant on October 23. On October 26 a petition for removal to the United States circuit court was presented by the defendant to a judge of the state court in Chambers, and the bond was approved. Before the petition for removal was filed, the motion for a stay came up, on October 24, in the state court, and was argued, and a stay was ordered, the defendant at the same time being relieved from any default in appearing. The matter of the appeal was not passed upon. This order was entered on October 26. On November 4 the record was filed in the United States court.

In the circuit court the defendant renewed its motion to set aside the service of the summons, the plaintiff objecting on various grounds, which will be dealt with, and moving to remand the case. On July 23, 1904, the court granted the defendant's motion and overruled the plaintiff's, and on August 30 a judgment was entered dismissing the action for want of jurisdiction of the defendant. See Wabash Western R. Co. v. Brow, 164 U. S. 271, 41 L. ed. 431, 17 Sup. Ct. Rep. 126. The plaintiff's rights were saved by a bill of exceptions, the form of the judgment, and a certificate of the judge, and the case now is brought here.

It is objected by the defendant that this court has not jurisdiction, on the ground that it does not appear that the want of jurisdiction of the court below as a Federal court was the ground of the judgment. But it appears clearly that the ground of the judgment was the absence of service on the defendant, and that the plaintiff denied the validity of the attempt to remove. See Excelsior Wooden Pipe Co. v. Pacific Bridge Co. 185 U. S. 282, 284, 285, 46 L. ed. 910, 912, 913, 22 Sup. Ct. Rep. 681, and cases cited. The former question was decided to be subject to review on error by this court in Shepard v. Adams U. S. 618, 42 L. ed. 602, 18 Sup. Ct. Rep. 214. That case has not been overruled. The latter question was held also

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proper to be brought here, in Powers v. Chesapeake & O. R. Co. 169 U. S. 92, 42 L. ed. 673, 18 Sup. Ct. Rep. 264. The jurisdiction of this court must be sustained.

Coming, then, to the motion to remand, it is said that the petition to remove was filed too late, because the time for answer had expired. It would be a strong interpretation of the New York Code of Civil Procedure, § 418, to say that it requires an answer within twenty days after the summons, when no complaint, or even notice stating the sum of money for which judgment will be taken (§ 419), has been served. See Dancel v. Goodyear Shoe Mach. Co. 106 Fed. 551. But it is a sufficient reply to the motion and to the objection to the removal, that the petition was filed as soon as the case became a removable one. Powers v. Chesapeake & O. R. Co. 169 U. S. 92, 42 L. ed. 673, 18 Sup. Ct. Rep. 264; Kansas City...