Hopson v. North Am. Ins. Co.

• Decision Date: 05 July 1951
• Docket Number: No. 7719,7719
• Citation: 71 Idaho 461,233 P.2d 799,25 A.L.R.2d 1040
• Parties: , 25 A.L.R.2d 1040 HOPSON v. NORTH AMERICAN INS. CO.
• Court: Idaho Supreme Court

Page 799

233 P.2d 799

71 Idaho 461, 25 A.L.R.2d 1040

HOPSON v. NORTH AMERICAN INS. CO.

No. 7719.

Supreme Court of Idaho.

July 5, 1951.

Wm. S. Hawkins and E.L. Miller, Coeur d'Alene, for appellant.

Clay Spear, Coeur d'Alene, Keith, Winston, MacGillivray & Repsold, Spokane, Wash., for respondent.

THOMAS, Justice.

The action was commenced on February 7, 1950 in the District Court of Kootenai County, Idaho, by appellant, plaintiff below, who will hereinafter be referred to as plaintiff.

The action was instituted against the respondent, defendant in the lower court. Service was made upon the defendant on February 10, 1950.

The Defendant made no appearance in the State District Court but on February 27, 1950 filed its petition for removal to the Federal District Court and in all respects, as conceded by appellant, complied with the procedural requirements to effectuate such removal, if the case be removable.

On March 27, 1950 without notice to the defendant, plaintiff moved the District Court of the State of Idaho for default on the ground that more than twenty days had expired since the service of summons and complaint upon defendant and that defendant had failed to file any appearance therein and that the time for such appearance had expired; on the same day, pursuant to this motion, without notice to defendant the District Judge of said District Court of the State of Idaho made and entered an order authorizing the Clerk of the State District Court to make and enter a default against the defendant. Such default was entered.

Thereafter and on April 6, 1950, the plaintiff made appearance in the United States District Court and moved that court to remand the cause back to the District Court of the State of Idaho; thereafter and on May 1, 1950, while awaiting the decision of the Federal District Judge on the motion to remand, the defendant filed a general demurrer in the District Court of the State of Idaho.

On June 16, 1950 the Federal District Judge of the State of Idaho entered an order granting the motion of the plaintiff remanding the cause from the United States District Court to the District Court of Kootenai County, State of Idaho.

On the following day the defendant filed a motion to vacate the default entered in the District Court of the State of Idaho and thereafter the District Judge of said District Court of the State of Idaho made and entered an order granting the motion of the defendant and vacating the default entered therein. From such order vacating and setting aside the default the plaintiff has prosecuted her appeal to this court.

From the foregoing statement it is apparent that the primary question for determination in this case, and the one which we deem decisive, concerns what effect, if any, the proceedings pending in the Federal District Court for the removal of the cause from the State District Court, which is not removable, have upon any proceedings taken in the State District Court while such proceedings were pending in the Federal Court and before the cause is remanded to the State District Court.

It is urged by appellant that where the defendant does not make out a case for removal, the jurisdiction of the Federal Court does not attach and the State Court does not surrender its jurisdiction but may proceed with the case as if no application for removal had been made and in the instant case may order the entry of default for failure to answer or otherwise plead to the complaint within the time permitted by the statutes of this state and that defendant takes his chances when he attempts to remove a case not removable. Appellant's contention in this respect under 28 U.S.C.A. 72, prior to amendment is supported by Morbeck v. Bradford-Kennedy Co., 19 Idaho 83, 113 P. 89; State v. American Surety Co., 26 Idaho 652, 145 P. 1097; Finney v. American Bonding Co., 13 Idaho 534, 90 P. 859, 91 P. 318; Mills v. American Bonding Co., 13 Idaho 556, 91 P. 381, and many cases from other jurisdictions. See 45 Am.Jur., Sec. 179, p. 934; Sec. 204, p. 950. Appellant urges that the amendment has resulted in no change in the law as announced in these cases; with this we cannot agree.

All of these decisions were rendered under the 'Removal Act', 28 U.S.C.A. § 72, prior to its amendment effective May 24, 1949, 28 U.S.C.A. § 1446.

In order to ascertain whether or not Congress intended to effect a change by the enactment of 28 U.S.C.A. § 1446 which would operate to void any proceedings taken in the State Court, pending the determination of the movability of the cause in the Federal Court even though it was ultimately determined that it was not in fact removable, we must look to the statute as amended, unaided by any decisions construing the amended statute, because counsel on neither side has called our attention to any case construing the statute since amended, nor have we been able to find any such case.

The amendment of an existing act indicates that a change was intended. State ex rel. Wright v. Headrick, 65 Idaho 148, 139 P.2d 761; Stewart v. Common School Dist., 66 Idaho 118, 156 P.2d 194.

It is provided under Sec. 72 in pertinent part as follows: 'Whenever any party entitled to remove any suit * * *, may desire to remove such suit from a State court to the district court of the United States, he may make and file a petition, * * * in such suit in such State court at the time, or any time before the defendant is required by the laws of the State or the rule of the State court in which such suit is brought to answer or plead to the declaration or complaint of the plaintiff, for the removal of such suit * * * and shall make and file therewith a bond, * * * for paying all costs that may be awarded by the said district court if said district court shall hold that such suit was wrongfully or improperly removed thereto * * *. It shall then be the duty of the State court to accept said petition and bond and proceed no further in such suit. * * *'

28 U.S.C.A. § 1446 provides in pertinent part as follows:

'(a) A defendant or defendants desiring to remove any civil action or criminal prosecution from a State court 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 to removal together with a copy of all process, pleadings and orders served upon him or them in such action.

'(b) The petition for removal of a civil action or proceeding shall be filed within twenty days after the receipt by the defendant through service or otherwise, of a copy of the initial pleading setting forth the claim for relief upon which such action or proceeding is based, or within twenty days after the service of summons upon the defendant if such initial pleading has then been filed in court and is not required to be served on the defendant, whichever period is shorter. * * *

'(c) * * *

'(d) Each petition for removal of a civil action or proceeding, except a petition in behalf of the United States, shall be accompanied by a bond with good and sufficient surety conditioned that the defendant or defendants will pay all costs and disbursements incurred by reason of the removal proceedings should it be determined that the case was not removable or was improperly removed.

'(e) Promptly...