Manning v. Amy
| Decision Date | 11 May 1891 |
| Citation | 35 L.Ed. 386,11 S.Ct. 707,140 U.S. 137 |
| Parties | MANNING v. AMY |
| Court | U.S. Supreme Court |
Jerome F. Manning, in pro. per.
Theo. F. H. Meyer, for defendant in error.
This was an action on contract, brought in the superior court of the commonwealth of Massachusetts for the county of Suffolk, by Henry Amy, a citizen of New York, against Jerome F. Manning, a citizen of Massachusetts, principal defendant, and certain other named defendants, who were supposed to have property belonging to Manning in their possession, to recover the amounts of four certain promissory notes, aggregating $23,475, exclusive of interest. The action was commenced September 5, 1884, by a writ returnable on the first Tuesday in October, 1884. It appearing on the return-day that the writ had been served on only a few of the garnishees, and not on the principal defendant, the court made an order directing that personal service be made upon him at least 14 days prior to the fourth Tuesday in October of that year. Personal service was effected on the defendant October 9, 1884, at Boston, by a deputysheriff, and return thereof was made on the following day. On the 14th of that month, Charles Cowley entered his appearance specially for the defendant, Manning, and on the 22d of the same month filed a motion to dismiss the action. On the 6th of November following, Wilbur H. Powers entered a special appearance for Manning, and filed a motion to dismiss and a plea in abatement, both of which were based upon the ground that the writ had not been personally served on him. On the 22d of December, 1884 th e aforesaid motion and plea not having been passed upon, the court ordered the defendant, Manning, to file an answer on or before December 26th of that year. This he did. On the 29th of December, 1884, the last day of the October term of the court, Mauning filed what purported to be a petition and bond for the removal of the cause to the United States circuit court for the district of Massachusetts, and he also simultaneously, and in connection therewith, filed the following motion: 'Defendant's motion touching the removal of this action: And now comes the defendant specially, and suggests to the court that he has heretofore filed a motion to dismiss this action for causes therein set forth, and also a plea in abatement for causes therein set forth, but neither said motion nor said plea has yet been heard or determined by this court, and the court is about to adjourn without day. He also suggests that he has herewith filed a petition for the removal of this cause to the circuit court of the United States for the district of Massachusetts, together with a suitable bond therefor, for, but that he has filed the same without prejudice to said motion or said plea. Wherefore, in case said motion should not be allowed, and in case said plea should not be sustained, he prays the court to order the removal of this action, as prayed for in said petition. JEROME F. MANNING. By his Att'y, WILBUR H. POWERS.
Thereupon the case was continued nisi to Thereupon the case was continued nisi to his right to remove to the circuit court of the United States.' At a hearing on the 3d of March, 1885, the aforesaid motion to dismiss and the plea in abatement were overruled, and the defendant appealed on March 10, 1885. What became of this appeal does not appear, but it does not seem to have been perfected, as no proceedings on it appear in the record. Nearly a year afterwards, to-wit, on the 2d of February, 1886, the cause being still on the trial docket of the superior court, at its January term, 1886, Wilbur H. Powers withdrew his appearance as attorney for defendant, Manning; and on the 8th of the same month Charles Cowley appeared generally for him. When the case was reached for trial at the January term, 1886, of the court, the defendant's counsel called the court's attention to the steps taken by him to secure the removal of the cause to the circuit court of the United States, and asked the court to remove the same, at the same time objecting to a trial in the state court. The court ruled, however, that the request came too late; that the right to remove was waived; and overruled the objection, and ordered the trial to proceed. The case went to trial on the 11th of February, before the court and a jury, resulting in a verdict, on the 16th of the same month, in favor of the plaintiff, for $27,958.38. On the 19th of February the defendant made a motion for a new trial, which was heard on the 8th of March following, and allowed, unless the plaintiff should remit from the amount of the verdict the sum of $699.24. The plaintiff filed a remittitur of that amount on the 9th of March, whereupon the motion for a new trial was overruled. The case then went to the supreme judicial court for the commonwealth of Massachusetts on exceptions taken by the defendant. Those exceptions were overruled by that court, (144 Mass. 153, 10 N. E. Rep. 737,) the rescript being received by the superior court at its January term, 1887. A motion for a new trial on the ground of newly-discovered evidence was...
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