Morbeck v. Bradford-Kennedy Co.

Decision Date21 December 1910
Citation19 Idaho 83,113 P. 89
PartiesARTHUR C. MORBECK et al., Respondents, v. BRADFORD-KENNEDY CO. et al., Appellants, and GEORGE P. NEWMYER et al., Respondents
CourtIdaho Supreme Court

DEFAULT JUDGMENT-JURISDICTION-REMOVAL OF CAUSE-VACATION OF DEFAULT AND JUDGMENT.

(Syllabus by the court.)

1. Where a defendant has been sued in the state court and summons has been served upon him and prior to the expiration of the time within which he is required to answer under the statute, and without appearing or answering he files a petition for a removal to the federal court, and an order of removal is made by the judge of the state court, and the record is thereafter transferred to the federal court, and on motion made in the latter court the cause is remanded to the state court for want of jurisdiction in the federal court and upon receipt of the certificate from the federal court remanding the cause, and in the absence of any appearance on the part of the defendants within the time prescribed by statute, the clerk of the district court enters the default of the defendants for failure to appear or answer; held, that the action of the clerk in entering the default of the defendants is within the authority and direction of secs 4360 and 4140 of the Rev. Codes, and that the same is not void for want of jurisdiction.

2 ID.-Where default has been entered by the clerk against a defendant under the circumstances above stated, the court has jurisdiction to hear the proofs submitted by the plaintiff and to make findings and enter judgment thereon.

3. Where a defendant has been sued in a state court and summons has been served upon him and, prior to the expiration of the time allowed by statute for him to answer, but without appearing or answering, he files a petition for removal to the federal court and the removal is ordered and the cause is thereafter remanded by the federal court on the ground that it was not removable from the state court, and in the meanwhile the defendant has allowed his time to elapse in which to appear or answer and he makes no appearance in the state court, and the clerk thereupon enters his default for failure to appear or answer, and the defendant thereafter moves to have the default vacated and the judgment set aside on the ground of his mistake, inadvertence, and excusable neglect, and sets up the foregoing facts and the further fact that he thought he would be given reasonable time in which to answer in the state court after the cause was remanded, and the district judge overrules such application; held, that there was no abuse of the discretion vested in the trial court, and that the order denying the motion and application will not be disturbed or reversed on appeal.

4. The statute of this state (sec. 4140, Rev. Codes) fixes the time within which a defendant shall appear and answer, and the fact that in the meanwhile and prior to the expiration of that time the defendant has the cause removed to the federal court, and it is thereafter held by the federal court that the removal was not proper and did not confer jurisdiction on the latter court, such action on the part of the defendant to change the forum will not serve to extend the time for answering in the state court, and will not relieve him from a default which he thus allows to be entered against him.

5. The fact that a defendant exhausts a part of his "day in court" or time in which he is allowed to appear and answer in a state court in a vain endeavor to change the forum and to get into another court, cannot be charged against the adverse party, and a default entered against him for failure to appear in the case during such removal proceeding cannot be said to deprive the party of the equal protection of the law or of his day in court as guaranteed by the fourteenth amendment to the federal constitution.

APPEAL from the District Court of the Eighth Judicial District of the State of Idaho, in and for Kootenai County. Hon. Robert N. Dunn, Judge.

Action by plaintiffs to set aside certain conveyances and for the appointment of a receiver. Judgment for the plaintiffs and certain of the defendants appealed. Affirmed.

Judgment affirmed, with costs in favor of respondents.

McBee &amp La Veine and William T. Stoll, for Appellants.

The district court, by the order of April 5th, solemnly adjudicated that the cause was removable, and ordered that all further proceedings in this case be stayed and discontinued. We were entitled, even though that order was erroneous, to rest securely, and rely upon it until it was vacated and set aside. We did so. It never has been vacated yet. The other side recognized the binding force of the order, because they did not attempt to take any steps thereafter in the state court until the cause was remanded by Judge Dietrich; not only so, but they appeared in the United States court and moved to remand. Further than that, after a removal order was signed by Judge Dunn, the question of jurisdiction was solely and exclusively a question to be determined by the United States circuit court. (Chesapeake etc. R. R. Co. v. McCabe, 213 U.S. 207, 53 L.Ed. 768; Carson v. Hyatt, 118 U.S. 279, 6 S.Ct. 1050, 30 L.Ed. 167; Kansas City R. R. Co. v. Daughtry, 138 U.S. 298, 11 S.Ct. 306, 34 L.Ed. 963; D'Wolf v. Raband, 1 Pet. (U.S.) 476, 7 L.Ed. 227.)

The judgment entered in this case against appellants, taking a large amount of their property from them, denying them a hearing, amounts to the taking of their property without due process of law, and in violation of the fourteenth amendment of the constitution of the United States. It also violates that other proviso in the fourteenth amendment guaranteeing the equal protection of the law to all persons. (Dartmouth College Case, 4 Wheat. (U.S.) 581, 4 L.Ed. 645; Roller v. Holly, 176 U.S. 398, 20 S.Ct. 410, 44 L.Ed. 520.)

A different rule would obtain if the state court had refused to order the removal. (Amory v. Amory, 95 U.S. 186, 24 L.Ed. 428; Stone v. South Carolina, 117 U.S. 432, 6 S.Ct. 799, 29 L.Ed. 962; Gregory v. Hartley, 113 U.S. 745, 5 S.Ct. 743, 28 L.Ed. 1150.)

The state court having ordered the removal, and that all proceedings in the state court be stayed, we were certainly not required to be in attendance upon the state court any further, until we were notified either that it had revoked its order of removal, and that it would proceed with the case, or that the cause was remanded to the state court by the United States circuit court; and, in either event, upon receiving such notice, we were entitled to at least a reasonable time to make our appearance in the state court. (Jansen v. Grimshaw, 125 Ill. 468, 17 N.E. 850; Texas etc. Ry. Co. v. Davis, 93 Tex. 378, 54 S.W. 381, 55 S.W. 562; Parker's Admr. v. Clarkson, 39 W.Va. 184, 19 S.E. 431; Barney v. Latham, 103 U.S. 205, 26 L.Ed. 514; Kinney v. Columbia Savings & Loan Assn., 191 U.S. 80, 24 S.Ct. 30, 48 L.Ed. 103; Burlington etc. Co. v. Dunn, 122 U.S. 513, 7 S.Ct. 1262, 30 L.Ed. 1159; Home Ins. Co. v. Dunn, 86 U.S. 214, 22 L.Ed. 68.)

After a cause has been removed to the federal court, proceedings had pending the remanding thereof are entirely without legal force or effect. (Kern v. Huidekoper, 103 U.S. 485, 26 L.Ed. 354; Baltimore etc. v. Koontz, 104 U.S. 5, 26 L.Ed. 643; Steamship Co. v. Tugman, 106 U.S. 118, 1 S.Ct. 58, 27 L.Ed. 87; Birdseye v. Shaeffer, 37 F. 821.)

If appellants were technically in default, they made a plain showing of mistake, inadvertence, surprise and excusable neglect. (Bailey v. Taaffe, 29 Cal. 423; Hitchcock v. McElrath, 69 Cal. 634, 11 P. 487.)

Where the circumstances under which a default was entered are such as to lead a court to hesitate, it is uniformly held to be better and safer to resolve the doubt in favor of the application so as to secure a trial and judgment on the merits. (Wolff v. Canadian P. Ry. Co., 123 Cal. 535, 56 P. 453; Merchants' A. S. Co. v. Los Angeles B. Co., 128 Cal. 619, 61 P. 277; Matter of Tracey, 136 Cal. 385, 69 P. 20; Watson v. San Francisco & H. B. R. Co., 41 Cal. 17; Grady v. Donahoo, 108 Cal. 211, 41 P. 41.)

Robert H. Elder, J. L. McClear and R. E. McFarland, for Respondents.

If the cause was not in fact removable, or the removal was not seasonably applied for, an order of the state court purporting to remove it has no force or effect. It does not confer jurisdiction on the federal court, and the cause still remains in the state court, and no order or other action of either court is required to reinstate the suit or restore the jurisdiction over it. (Black's Dillon on Removal of Causes, sec. 190; Winchell v. Coney, 54 Conn. 24, 5 A. 354.)

According to the weight of authority, if the state court proceeds in a case notwithstanding an attempted removal, and the case is subsequently remanded for want of jurisdiction, the intervening proceedings in the state court are valid. (34 Cyc. 1308; Darton v. Sperry, 71 Conn. 339, 41 A. 1052; Dahlonega Co. v. Hall Merc., 88 Ga. 339, 14 S.E. 473; Edgarton v. Webb, 41 Ga. 417; Roberts v. Chicago etc. Ry. Co., 48 Minn. 521, 51 N.W. 478; Nat. Union Bank v. Dodge, 42 N.J.L. 316; Johnson v. Gelston, 3 N.J.L. 668; Hadley v. Dunlap, 10 Ohio St. 1; State v. Port Royal Ry. Co., 45 S.C. 413, 23 S.E. 363; White v. Holt, 20 W.Va. 792; Johnson v. Wells, 91 F. 1; Tucker v. Interstate Life Assn., 112 N.C. 796, 17 S.E. 532.)

Where a state court grants an application for removal of a cause to the United States court, it is a declination to proceed further in the cause; but when it is ascertained that the order of removal was improper, that the United States court has not jurisdiction, the cause revives in the state court and should be proceeded with as though no order of removal had been made. (Germania F. Ins. Co. v. Francis, 52...

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