Lee v. Continental Ins. Co.

• Decision Date: 11 August 1923
• Docket Number: 970-972.
• Citation: 292 F. 408
• Parties: LEE v. CONTINENTAL INS. CO. SAME v. AMERICAN EAGLE FIRE INS. CO. SAME v. CONNECTICUT FIRE INS. CO.
• Court: U.S. District Court — Eastern District of Kentucky

292 F. 408

LEE v. CONTINENTAL INS. CO. SAME v. AMERICAN EAGLE FIRE INS. CO. SAME v. CONNECTICUT FIRE INS. CO.

Nos. 970-972.

United States District Court, E.D. Kentucky.

August 11, 1923

John D. Carroll, of Frankfort, Ky., for plaintiff.

Bruce &amp Bullitt, Joseph S. Laurent, and Wm. A. Minihan, all of Louisville, Ky., for defendants.

COCHRAN District Judge.

These causes are before me on plaintiff's motions to remand. I am constrained to sustain them on both grounds which have been urged.

The causes were appearances to the April term, 1923, of the Franklin circuit court. That term began Monday, April 2d. The petitions and bonds and notices of purpose to file them, with return thereon showing execution thereof on plaintiff's attorney, were filed in the office of the clerk of the court at about 8 o'clock p.m. on that day, after adjournment of the court. At defendant's instance, the judge of the court was present when this was done, and then made orders accepting the petitions and bonds and removing the causes to this court, which recited that they were made in open court. The notices had been executed just shortly before such action was taken, between 7 and 8 o'clock p.m.

The filing of the removal papers came too late. By section 367a subds. 4, 9, and 11, of the Kentucky Civil Code of Practice answers were due on the call of the docket whilst the court was in session on that date. The requirement of the removal statute is imperative that the removal papers must be filed on or before the time that defendant is required to answer. They were not filed until after court had adjourned. At the very latest, the time for filing them expired upon such adjournment. The fact that default judgments were not taken makes no difference. Kansas City R. Co. v. Daughtry, 138 U.S. 298, 11 Sup.Ct. 306, 34 L.Ed. 963. The exact facts as to when and the circumstances under which the removal papers were filed and the orders of removal were made appear from subsequent proceedings had in the state court on a motion to set aside the order of removal. Those subsequent proceedings do not contradict or vary the showing made by the previous proceedings had therein. They are entirely consistent therewith. It is proper, therefore, to consider these subsequent proceedings in arriving at those facts.

Then it seems to me that the notices were insufficient. They were to the effect that the defendants would file petitions and bonds for removal in the office of the clerk of the circuit court on that day, the meaning of which to plaintiff when served was that they would be so filed between the time of service and midnight. There was no statement therein that they would ever be filed in court, or that the court would be applied to for orders of removal. Much less was there any statement as to when such applications would be made. So far as they were concerned it was defendant's purpose to rely on such filing alone to effect a removal.

There has been considerable difference of opinion amongst the lower federal courts on the question as to whether a removal can be effected by the mere filing of removal papers in the clerk's office. The conflicting decisions may be found referred to in Judge McDowell's opinion in the case of Mays v. Newlin (C.C.) 143 F. 574, where he held that a removal cannot be so affected. Such I take to be the position of the Supreme Court of the United States, which is controlling. A suit to recover damages for a personal injury was brought in a state court of Minnesota. Removal papers were filed in the office of the clerk of the court. This is all that was done to effect a removal. Thereupon a transcript of the proceedings was filed in the federal court. Default judgment was thereafter rendered in the state court. On appeal to the Supreme Court of the state that judgment was affirmed. Roberts v. Chicago, St. P., M. & O. Ry. Co., 48 Minn. 521, 51 N.W. 478. This judgment was affirmed by the Supreme Court of the United States without opinion. Chicago, etc., R. Co. v. Roberts, 164 U.S. 703, 17 Sup.Ct. 992, 41 L.Ed. 1183. After the default judgment was rendered in the lower state court, and before the disposition of the case in the state Supreme Court, the cause was remanded by the federal court to which it had been removed. Roberts v. Chicago, etc., R. Co. (C.C.) 45 F. 433. A writ of error to review the order of remand was dismissed by the Supreme Court for want of jurisdiction. Chicago, etc., R. Co. v. Roberts, 141 U.S. 690, 12 Sup.Ct. 123, 35 L.Ed. 902. The determination of the validity of the default judgment was to no extent affected by the order of remand. In the lower federal court Judge Nelson, in remanding the cause, said: 'The petition should be presented to the state court, and opportunity given that court to act.'

The reasoning of Judge Dickinson, of the Minnesota Supreme Court, who delivered the opinion on behalf of that court, and that of Judge McDowell in Mays v. Newlin, seem to me to be convincing on the question as one of principle. In the case of Babbitt v. Clark, 103 U.S. 606, 610 (26 L.Ed. 507), it is said:

'The right to remove a suit from a state court to the Circuit Court of the United States is statutory, and to effect a transfer of jurisdiction all the requirements of the statute must be followed.'

The steps that are required to be taken in order to effect such a transfer depend upon a correct interpretation of section 29 of the Judicial Code (Comp. St. Sec. 1011). It provides for at least two steps, to wit; the giving of a notice, and the filing of a petition and bond. The section provides for these two steps in the reverse order-- first the filing, and then the giving of the notice. The portion of the section providing for the filing was in the statute before the enactment of the Judicial Code in 1911. That portion providing for the giving of notice was added thereby, and in its interpretation it is important to interpret first the original portion and understand exactly what it provides for. It provides for the filing of the petition and bond 'in such suit in such state court. ' The suit referred to is the suit pending in the state court which is desired to be removed. The phrase is somewhat ambiguous. Do the words 'in such state court' qualify the words 'in such suit,' or the previous word 'file'? Those courts which have held that a filing in the clerk's office is sufficient seem to take the former view. The latter view would seem to be the better view. Two things in regard to the filing were intended. The petition and bond were to be filed in the state court, and they were to be filed therein in the suit sought to be removed. This would more clearly appear, had the two sets of words been reversed, so that the phrase would have read 'in such state court in such suit.' That such is the better view appears from what follows.

I have said that the section provides for at least two steps. There is, at least, ground for claiming that it provides for an additional third step following upon the filing consisting of action on the part of the state court in making an order of removal. Basis for this may be found in the character of the petition for whose filing provision is made. It is a 'petition for the removal'; i.e., a written application, addressed to the state court, to make an order removing the cause to the federal court. This contemplates that the state court, upon presentation of such application to it, shall make such an order. That provision is made for such third step is to be gathered further from the second sentence of the section. It is in these words:

'It shall then be the duty of the state court to accept said petition and bond and proceed no further in such suit.'

This, I take it, means that the state court shall act on the application and grant it by making the order of removal. If such is its meaning, it is expressly provided that the state court shall make the order of removal which the petition contemplates and seeks. If a removal is always effected immediately upon the filing of the petition and bond, without an order of removal, as numerous dicta in opinions of the Supreme Court and lower federal courts state, what power has the state court thereafter to make such an order? What purpose does it serve? Is not its making a vain thing?

That the section provides for the making of an order of removal as a third step in the proceedings to effect a removal does not put it in the power of the state court to prevent or delay a removal. The section imposes on the state court the duty of making the order. If it should fail or refuse to do so, it is the same as if it had made the order. That such is the case is not against the removal being effected by the order, if it is made; and the result is that no removal is effected until the state court has an opportunity to make the order of removal. If it makes the order, then the removal is effected thereby. If it fails or refuses to so do, the removal takes place without it.

Such I take to be the thought of the section. It is equally its thought that, if the order is made, it is then, and not until then, that the transfer takes place. This view of the matter gives effect to all the terms of the section and the right of removal is not hampered. According to it there can be no removal without a presentation of the petition and bond to the court. If such presentation is made and an order of removal is entered, the removal takes effect upon the entry of such order and by virtue thereof. If upon such a presentation the court fails or refuses to make the order, the removal takes effect at once without such order.

The question has arisen whether a presentation of the petition and bond to the judge of the court in chambers is sufficient to effect a removal....