Howard v. Southern Ry. Co.

• Citation: 29 S.E. 778,122 N.C. 944
• Parties: HOWARD v. SOUTHERN RY. CO.
• Decision Date: 05 April 1898
• Court: United States State Supreme Court of North Carolina

29 S.E. 778

122 N.C. 944

HOWARD v. SOUTHERN RY. CO.

Supreme Court of North Carolina

April 5, 1898

Appeal from superior court, Rowan county; McIver, Judge.

Action by Fannie E. Howard, administratrix, against the Southern Railway Company. From an order denying defendant's petition for removal, defendant appeals. Affirmed.

The filing of a petition in a state court to remove a cause to a federal court does not ipso facto deprive the former of its jurisdiction, or effect a removal of the cause.

Charles Price and Geo. F. Bason, for appellant.

A. C Avery, Long & Long, and Lee S. Overman, for appellee.

CLARK J.

The summons in this action was returnable to August term, 1897 of the superior court of Rowan, at which term, by the laws of this state (Code, §§ 206, 207), the complaint and answer were required to be filed. At that term neither was filed, but an entry was made on the minutes, which on its face does not purport to be by order of the court, and, indeed, which is admitted to have been by consent. "Plaintiff has 30 days to file complaint, and the defendant 60 days thereafter to file answer." The complaint was filed 7th September 1897, and the answer on 11th October. On 6th October, the defendant filed in the office of the clerk of said superior court (no term being then held) a petition for removal of said cause to the United States circuit court, on the ground of diverse citizenship. It does not appear when the bond was filed, but it was subsequently, for it was not justified by the surety thereto till 8th October, in Raleigh. The next term of the United States circuit court, to which the cause was removable, was held at Statesville, 18th October. The transcript of the record was not filed at said term. At the November term of said superior court, the cause was continued without objection. Subsequent to said term, application was made to the clerk of the superior court to send the transcript to the United States circuit court, which was declined, because no order of removal had been made by the judge of the superior court. At the February term, 1898, the defendant moved the superior court to sign the order of removal. This being refused, the defendant excepted, and appealed to this court.

It was held by the United States circuit court for the Western district of North Carolina (Dick, J., presiding) that the federal court could acquire no jurisdiction if the petition and bond are filed in the office of the clerk of the superior court in vacation, instead of presenting them to the judge thereof. Fox v. Railway Co. (1897) 80 F. 945. That case is on "all fours" with this. In delivering the opinion in that case, his honor, Judge Dick, says: "A sufficient petition and bond, to have the legal force and effect of removal, must be actually or impliedly presented to a state court in session, with power to hear and consider the application. The removal statute imposes a duty on the state court to accept a sufficient petition and bond, and proceed no further in the cause against the petitioner. It is certainly courteous, reasonable, just, and lawful that such court should have opportunity of performing its duty by considering and acting upon the application before it surrenders its original and concurrent jurisdiction, or before it is deprived of jurisdiction by the operation of paramount laws of the United States. A wise and just public policy requires federal courts, in the exercise of their rightful jurisdiction, to accord to state courts the most liberal and cordial comity that is consistent with their legal duty in the enforcement of paramount national laws." To the same tenor: Shedd v. Fuller, 36 F. 609; Roberts v. Railway Co., 45 F. 433; Williams v. Association, 47 F. 533; La Page v Day, 74 F. 977; Black, Dill. Rem. Causes, § 189. If such filing is not sufficient, it is clear that the defendant is not entitled to remove, for he has not made his application in time, even if the extension of time to file pleadings extended the time to ask for removal. The leave to "file complaint in 30 days and answer in 60 days thereafter" has been construed in this court. Mitchell v. Haggard, 105 N.C. 173, 10 S.E. 856. Under that construction, the complaint having been filed 7th September, the 60 days allowed defendant to file answer thereafter was after filing complaint, and would have expired November 6th. Indeed, however, it expired, in fact, October 11th, when the answer was filed, for "the time for answering expired when the answer was filed, as was held in County Board of Education v. State Board of Education, 106 N.C. 81, 10 S.E. 1002. Thus, in any aspect, the time for answering had expired when the superior court met at its regular term, 22d November, and no petition for removal was filed even at that term, and the cause was recognized as being in the state court by the order of continuance made at that term, without objection. The petition was not presented to a judge of the state court till February term, 1898.

But if it were held that filing the petition (October 6th) in the clerk's office, and not before the judge (the bond being filed at some time not shown, but thereafter), was a sufficient compliance with the act of congress, still it was too late and ineffective. The delay in filing the bond is also held a material defect. Austin v. Gagan, 39 F 626. In Velie v. Accident Co., 40 F. 545, Judge Jenkins, in the United States circuit court for Wisconsin, summed up his reasoning as to the time when the petition is required to be filed by the act of congress of 1888, thus: "It is a cardinal principle of construction that statutes should be intended to suppress the mischief and advance the remedy. Looking, then, to the clear design of congress to abate the abuses that had arisen under the acts of 1866 and 1867, and to further restrict the time allowed by the act of 1875, it is apparent that congress intended that the right should be exercised at the earliest period possible. That period was designated to be at or before the time prescribed by law for answering; not the time when the cause, by reason of dilatory proceedings, might be ripe for answer; not the time enlarged by stipulation of parties or by the order of the court; but the determinate time specified in the statute or in the rule of court. The statute or the general rule of court speaks that time, not the order or stipulation in the particular case." If this is the law, it settles this controversy as to the right of removal, for by the statute the time for answering was during the August term of the court, which expired September 4th; and the leave to file pleadings thereafter was simply "an order or stipulation in the particular case," and could not change the time fixed by the act of congress within which the petition must be filed to be available. Judge Jenkins cites the fact that under the act of 1875, when the petition was required to be filed "before or at the term at which the cause could be first tried," it was held in Car. Co. v. Speck, 113 U.S. 84, 5 S.Ct. 374, that this time could not be extended by the agreement of parties, or the order of the court, giving time to file pleadings. The opinion is by that eminent jurist, the late Justice Miller, and to same effect is Gregory v. Hartley, 113 U.S. 746, 5 S.Ct. 743. The sole difference in this regard between the two acts is as to the term at which the petition is required to be filed. The construction given by Judge Jenkins to the act of 1888, as to time of filing the petition to remove, seems to be the accepted construction of this act, as it had been of the act of 1875. In Austin v. Gagan (1889) 39 F. 721, Judge Sawyer, in the United States circuit court for California, held: "The party must make his election, and file his petition at or before the time when his pleading is first due under the law or rules as they exist when service of summons is made, or he waives his right to a removal. This must be the rule, or the parties by stipulation, or the court by special orders on their application, may extend the time to apply for a removal indefinitely, and the policy of the law be thereby defeated." In Delbanco v. Singletary (1889) 40 F. 177, Sabin, J., in United States circuit court for Nevada, says: "In Wedekind v. Southern Pac. Co., 36 F. 279, decided by this court, an inference might arise that possibly an order of the state court extending defendant's time to plead might be construed as extending his time within which to file his petition and bond for removal of the cause. If such inference fairly arises in that case, we wish here to correct it, as, under the authorities [above] cited, it seems clear that such an order of the state court could not have such effect. The state court could not, by order or otherwise, enlarge or modify the terms and provisions of an act of congress, nor confer jurisdiction upon this court which otherwise it would not have." In Kaitel v. Wylie, 38 F. 865, Judge Blodgett expressly declares the statute to be imperative that the petition for removal must be made when the plea is due, and that it comes too late when after the time to plead designated by law. In Spangler v. Railroad Co., 42 F. 305, Phillips, J., in the United States circuit court for Missouri, says: "If the time for removal can be made to depend upon action, capricious or otherwise, of the state judge in extending it (time for pleading) for a month or six months, there would be no uniformity, no certainty, in the law of removal. *** The evident policy of congress was to make certain, fixed, and definite the time of such removal, and to hasten trials, and not permit hurtful delays by removals"; and he remanded the case to the state court. This is cited with approval by Knowles, J., in United States circuit court for...