Markey v. Chicago, Milwaukee & St. Paul R. Co.

• Decision Date: 21 September 1915
• Docket Number: 30093
• Citation: 153 N.W. 1053,171 Iowa 255
• Parties: JOHN MARKEY, Appellee, v. CHICAGO, MILWAUKEE & ST. PAUL RAILWAY COMPANY, Appellant
• Court: Iowa Supreme Court

153 N.W. 1053

171 Iowa 255

JOHN MARKEY, Appellee, v. CHICAGO, MILWAUKEE & ST. PAUL RAILWAY COMPANY, Appellant

No. 30093

Supreme Court of Iowa, Des Moines

September 21, 1915

Appeal from Dallas District Court.--HON. W. H. FAHEY, Judge.

As reversal is ordered because we hold that the trial court should have granted appellant's petition for removal, our consideration is limited to giving our reasons for reaching said conclusion. The facts will be stated in course of the opinion.--Reversed and Remanded.

Reversed and Remanded.

E. J Kelley, for appellee.

Cook Hughes & Sutherland, for appellant.

SALINGER J. DEEMER, C. J., LADD and GAYNOR, JJ., concur.

OPINION

SALINGER, J.

I.

On the 13th day of August, 1913, the plaintiff, appellee, filed petition charging defendant with having negligently injured him, and demanding judgment in the sum of three thousand dollars therefor. On the 21st day of August, defendant filed an answer which is practically a general denial. On the 4th day of November, 1913, the first day of the November term in that year, plaintiff filed a motion for leave to amend his petition by raising the prayer for judgment from three thousand dollars to six thousand dollars. The motion was sustained on the same day, and thereupon, still on the same day, plaintiff filed an amendment, stating that, by reason of the acts described in his original petition, the plaintiff had suffered damages in the sum of six thousand dollars, and asking judgment for said enlarged amount. It is conceded, as indeed it must be, that a removable suit was created at the time when said amendment put the damages sought above three thousand dollars. By Sec. 1011, United States Compiled Statutes, 1913, (Judicial Code, Sec. 29), it is provided that a petition for removal must be filed "at the time, or at 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." It is settled in this court that whensoever this act of Congress is applicable, its reference to statute or rule time means the time fixed by statute or rule, and not a time later fixed by extension on order of court or stipulation of parties. See Wilson v. Coal Co., 135 Iowa 531, 113 N.W. 348. So anything addressed to said amendment to petition was, under statute and court rule, due by the morning of November 5th. The petition for removal was not filed until the 17th day of November, and appellee insists that, therefore, it came too late, and the application to remove was rightly denied. Whether the Federal statute is applicable depends upon whether said amendment to petition required answer, and, if none was required, upon whether it is a proper construction of the Removal Act that its time limit by adoption applies to cases wherein no answer is required. We may assume that Congress has power to require that a removal must, under all circumstances, be perfected within a stated time after a removable suit comes into existence, but are of opinion that it has not done so. The enactment is that the removal petition must be filed before the time at which the state law "requires answer." This, it seems to us, presupposes a case in which answer is required, and leaves open the question when application to remove must be made where an amendment which needs no answer creates a removable suit.

Was answer required to be filed at all? The petition alleges that certain acts of the defendant injured the plaintiff, wherefore three thousand dollars was due. The general denial asserts that defendant has done none of these things and that, therefore, neither three thousand dollars, nor, of course, any larger sum, is due. Such answer is, in sense, anticipatory, so far as meeting any enlarged claim for the same injury is concerned. After the defendant had denied injuring the plaintiff at all, a subsequent statement that the denied acts had caused more damage than was originally claimed was necessarily met in advance by said denial. So long as there remained a denial of all acts alleged to have caused injury, and of all damage, no additional answer was required to deny that the damage amounted to six thousand dollars.

In Mann v. Howe, 9 Iowa 546, we hold that an answer which merely denies the amount of defendant's indebtedness as claimed by plaintiff, without denying his cause of action, does not entitle to a trial, but leaves the one thus answering substantially in default. Since making mere denial that there was an indebtedness in the sum of $ 6,000 would be of no avail, and would still leave the maker precisely as though he had made none, it must follow that no such denial is necessary. It cannot be possible that an answer is required which, in law, leaves the one making it in default. In Brown v. Ellis, 26 Iowa 85, it is ruled that, where there is an answer to the original petition in certiorari, an answer to an amended petition which is but a repetition of the matter contained in the original is not necessary. To the same effect is Peacock v. Gleesen, 117 Iowa 291, 90 N.W. 610. On the ground that such amendment "changes no allegation of fact," it is held in City of Topeka v. Sherwood (Kans.), 18 P. 933 at 934, there was no error in refusing leave to answer a complaint amendment raising the amount of damages.

In Yates v. French, 25 Wis. 661, the exact point seems to be ruled. There, the complaint was amended by increasing the amount of damages claimed on the facts alleged in the original complaint, and it was held that the answer to the original complaint stands as the answer to the amended complaint, and that it was error to permit plaintiff to take judgment because no answer had been filed to the amended complaint. As said, the original answer here operated as a complete defense on paper to the petition as amended. Therefore, there is no requirement that that which was already pleaded should be repleaded, and by rule time. While the statute does require amendments to petition, generally, to be pleaded to within a time fixed, this has no application to cases wherein no pleading is required. Wherefore, we are constrained to hold that if this removal petition was filed too late, it is because of something other than the time rule adopted by the Federal statute. But as appellee rightly suggests by argument in the alternative, though this statute rule does not govern, there is, of course, a limitation upon the time at which such petition may be effectively filed. Appellee urges that defendant had constructive notice of the steps that ended with the filing of said amendment, and that such notice is of controlling effect.

II. Assume that defendant had constructive notice of the filing of the amendment, and there remains the question whether such notice has, here, the effect of actual knowledge. Appellee contends that the cases cited for appellant are not authority for the position that, when a party gets constructive notice of a removable suit on November 4th, a petition to remove, filed on November 17th, is timely. That some of these citations are well objected to is true. As is not altogether unusual, both parties indulge in some briefing and argument that is irrelevant. It may be true, though we think it will prove immaterial, that in none of the cases cited is there construed a statute similar to our own. In like case is the claim that the time for effective transfer is not a matter of judicial discretion. Fritzlen v. Boatmen's Bank, 212 U.S. 364, 53 L.Ed. 551, 29 S.Ct. 366, is but a decision that one remand is no bar to a second removal if conditions so change as to warrant a second removal. Northern P. R. Co. v. Austin, 135 U.S. 315, 34 L.Ed. 218, 10 S.Ct. 758, decides merely that the creation of a removable cause is no basis for complaining of retention in the state court, in the absence of an application to remove. Neither Daugherty v. Western U. T. Co., 61 F. 138, nor Adams v. Puget Sound T. L. & P. Co., 207 F. 205, is relevant on the effect of constructive notice, because, in each, defendant delayed removing too long after actual notice. We hold in Wilson v. Godfrey, 145 Iowa 696, 124 N.W. 875, that the record of a regularly conducted tax sale is constructive notice to a subsequent mortgagee of the lien thus created; but that does not touch whether laches can be based on constructive knowledge, without more. And so, while Wagner v. Tice, 36 Iowa 599, compels a litigant to take notice of motions without notice other than constructive, this reiterates the statute, and again does not rule on whether less than actual knowledge can initiate negligent delay.

In the end, appellee apprehends that no matter what the briefs fail to do, the real question is whether defendant was negligent. So much is conceded by his argument that "plaintiff cannot be held responsible for the negligence of defendant's attorney." The record shows clearly that defendant had no actual knowledge of the amendment until the very day on which it applied for transfer. The matter for decision is, therefore, whether a party, assuming him to be without fault in not obtaining actual knowledge, can be guilty of laches for failing to act upon what he knows by construction only. Is one guilty of laches who moves as soon as he knows that which calls for action because, before he gets actual knowledge, he has constructive notice which, if actual, would call for action at once? That constructive notice is the equivalent of actual notice in the sense of fixing rights or imposing obligations is undoubted. But how can such notice ever establish scienter? The right to remove may be lost either by failing to obey a mandatory statute rule, by negligence, or by such conduct as implies a consent to...