Martin v. Carter

• Decision Date: 16 November 1891
• Citation: 48 F. 596
• Parties: MARTIN v. CARTER et al.
• Court: U.S. District Court — District of Montana

48 F. 596

MARTIN v. CARTER et al.

United States Circuit Court, D. Montana.

November 16, 1891

Sterling & Muffly and Word & Smith, for defendant Montana Mining &amp Reduction Co.

H. G McIntire, for defendants Cook & Whitney.

KNOWLES J.

This cause is now before the court on a motion to remand the same to the state district court, in which the cause of action was instituted. The complaint was filed on the 3d day of October 1890, and on the same day a summons was issued in the cause. It does not appear from the return of the sheriff on the summons that it was served upon the defendant Montana Mining & Reduction Company, but on the 8th day of November, 1890 said defendant filed its demurrer to plaintiff's complaint. On the 8th day of December, of the same year, plaintiff filed an amended complaint. On the 6th day of December preceding this plaintiff and said defendant made and filed a stipulation, to the effect that plaintiff should be entitled to file an amended complaint at any time during the December term of court for 1890, and that said defendant should have until the 31st day of January, 1891, to plead thereto. On the 26th day of January said defendant filed a demurrer to this amended complaint. On the 18th of May following said defendant filed its petition for a removal of the cause to this court.

There are two questions presented for consideration in the said motion to remand: First. Did said defendant file its petition for removal in time? and, second, was this a severable cause, so that said defendants could have their part of the issues presented in the complaint removed to this court? In considering the first proposition, it will be observed that there is a difference between this case and that of McDonald v. Mining Co., 47 F. 593, (decided at this term.) In that, the defendant was served with summons; in this, there is nothing to show that said defendant on whose petition the cause was removed was served with process. As far as the record discloses, the said defendant made a voluntary appearance by filing a demurrer to plaintiff's complaint, and was within the jurisdiction of the court when the amended complaint was filed. There are two provisions of the statute of Montana in regard to amending a complaint. A portion of section 87, p. 81, Comp. St. Mont., provides:

'If the complaint be amended, a copy of the amendments shall be filed, or the court may, in its discretion, require the complaint as amended to be filed, and a copy of the amendments shall be served upon every defendant to be affected thereby, or upon his attorney, if he has appeared by attorney. The defendant shall answer in such time as may be ordered by the court, and judgment by default may be entered upon failure to answer, as in other cases.'

Section 115, Comp. St. Mont., p. 88, is as follows:

'Any pleading may be amended once by the party of course, and without cost, at any time before the answer or demurrer filed; and after the demurrer, and before the trial of the issue of law thereon, by filing the same as amended, and serving a copy on the adverse party, who may have ten days thereafter in which to answer or demur to the amended pleading.'

In considering these two sections together, it is evident that the first of them applies to amendments made after the trial of the issue of law presented to the court by the demurrer, while the latter applies to amendments before the trial of any such issue or before the filing of any answer in the case. McGary v. Pedrorena, 58 Cal. 91. Plaintiff could have amended his complaint once as of course, after said defendant had demurred to the same, and before the hearing of the demurrer, without the consent of the said defendant. No answer had been filed thereto. Does the fact that the plaintiff had the right to amend his complaint of course, at the time of the stipulation above named was entered into, the demurrer not having been heard, place the case in any different condition than it would have been if no stipulation had been entered into? It is an established principle that where a party contracts to do what the law requires him to do the contract is a nudum pactum, there being no consideration therefor. Bish. Cont. Sec. 48; Ayers v. Railroad Co., 52 Iowa, 478, 3 N.W. 522; City of Newton v. Railway Co., 66 Iowa, 422, 23 N.W. 905.

Upon the same principle, where a party contracts to give another a right which the statute gives him, the contract amounts to nothing. The right will be considered to have been exercised by virtue of the statute, and not of the contract. It is true that in this case the whole of the December term of court was given to the plaintiff in which to amend his complaint. But it is a fact that the demurrer to the first complaint had not been disposed of when the amended complaint was filed, and until disposed of the plaintiff had the right to file his complaint as amended as of course. But here we are confronted with another difficulty. It does not...