Janoske v. Porter

• Decision Date: 05 June 1933
• Docket Number: No. 4902.,4902.
• Citation: 64 F.2d 958
• Parties: JANOSKE v. PORTER.
• Court: U.S. Court of Appeals — Seventh Circuit

64 F.2d 958 (1933)

JANOSKE v. PORTER.

No. 4902.

Circuit Court of Appeals, Seventh Circuit.

May 9, 1933.

Rehearing Denied June 5, 1933.

Thomas J. Peden, John C. Melaniphy, and Gerald Ryan, all of Chicago, Ill., for appellant.

Meyer N. Rosengard, of Chicago, Ill., for appellee.

Before EVANS and SPARKS, Circuit Judges, and BALTZELL, District Judge.

BALTZELL, District Judge.

On the 10th day of June, 1932, appellant (plaintiff below) filed a præcipe in the superior court of Cook county, Ill., requesting the clerk of that court to issue a summons commanding the appellee (defendant below) to appear in that court on the 1st day of August, 1932, to answer unto her in a plea of trespass on the case to her damage in the sum of $25,000. The summons was served on appellee on the 21st day of July. On the 1st day of August appellee entered his special appearance for the sole purpose of presenting a motion to remove the cause to the District Court of the United States for the Northern District of Illinois, Eastern Division. A petition for removal, accompanied by a bond, as required by law, was filed by appellee on the same day that his special appearance was entered. On the following day an order was entered in the superior court of Cook county, removing the cause to the District Court of the United States, as prayed in the petition. A transcript of the record was filed in the office of the clerk of the District Court on the 31st day of August, 1932. Appellant filed her declaration in the office of the clerk of the District Court on the 22d day of September, 1932, and on the 25th day of November following appellee filed a motion to strike the declaration and to dismiss the cause. After hearing upon this motion, the court sustained the same and entered the following order:

"The matter coming on to be heard on the motion of the defendant to strike the declaration filed in the above entitled cause for the reason that the said declaration was not filed within the time prescribed by the laws of the State of Illinois and for an order dismissing said cause, and the court having heard arguments of counsel and being fully advised in the matter,

"It is ordered that the declaration be, and it is hereby stricken from the files and said cause is dismissed for failure to file the declaration within the time prescribed by the statutes of the state of Illinois at plaintiff's costs."

There was in force at that time in the state of Illinois a Practice Act for the purpose of regulating practice and procedure in courts of record, which reads, in part, as follows: "If the plaintiff shall not file his declaration * * * ten days before the court at which the summons or capias is made returnable, the court, on motion of the defendant, shall continue the cause at the cost of the plaintiff, unless it shall appear that the suit was commenced within ten days of the sitting of the court, in which case the cause shall be continued without costs * * * and if the declaration * * * shall not be filed ten days before the second term of the court, the defendant shall be entitled to a judgment as in case of a non-suit. * * *" Smith-Hurd Rev. St. Ill. 1931, c. 110, § 32, Cahill's Rev. St. Ill. 1931, c. 110, par. 32.

It is also provided by the statute of Illinois "that the terms of the superior court of Cook county shall commence on the first Monday of every month." Smith-Hurd Rev. St. Ill. 1931, c. 37, § 126, Cahill's Rev. St. Ill. 1931, c. 37, par. 187.

The first day of the September term of the superior court of Cook county, in the year 1932, was on September 5. It is apparent, therefore, that, if the cause had not been removed to the District Court, appellant would have been required, under the provisions of the Illinois statute, to have filed her declaration on or before the 26th day of August, that being the 10th day before the commencement of the September term of the superior court, which was the second term of such court following the return of the summons.

The question, therefore, is whether or not the removal of the cause from the state court to the federal court suspended the time for the filing of the declaration; such suspension of time being measured by the number of days elapsing between the order of removal and the date on which the transcript of record was filed in the office of the clerk of the District Court. In other words, to apply the question specific, whether appellant was required to file her declaration on or before August 26th, or whether she had twenty-four days following August 31st (the date on which the transcript was filed in the clerk's office) within which to file such declaration. If the removal of the cause suspended the statute, then the declaration was filed within the required time; otherwise it was filed too late.

The cause being one that was removable under the statute, the jurisdiction of the state court ceased immediately upon the filing of the removal petition and bond by appellee. No further action could be taken by that court, and no further pleadings were permissible therein. The jurisdiction of the District Court attached immediately. It was not necessary that a transcript of record be filed in the office of the clerk of the District Court in order to confer jurisdiction upon that court. The filing of the transcript of record with the District Court was necessary, however, for it to proceed with the cause. Baltimore & Ohio ...