Phoenix Ins. Co. v. Charleston Bridge Co., 97.

CourtUnited States Courts of Appeals. United States Court of Appeals (4th Circuit)
Citation65 F. 628
Docket Number97.
PartiesPHENIX INS. CO. v. CHARLESTON BRIDGE CO.
Decision Date05 February 1895

65 F. 628

PHENIX INS. CO.
v.
CHARLESTON BRIDGE CO.

No. 97.

United States Court of Appeals, Fourth Circuit.

February 5, 1895


[65 F. 629]

This action at law was commenced in the court of common pleas for Charleston county, S.C., on January 27, 1894, by service of summons and complaint upon the defendant's agents. By the state law (Code S.C. p. 51, Sec. 164) the defendant was required to answer within 20 days; that is to say, before the 16th of February. The defendant applied to have the time enlarged, and, as authorized by the Code (section 193), the judge of the court, on the 5th of February, extended the time within which the defendant was required to answer until the 10th day of March, 1894. On the 20th of February the defendant filed its petition for removal to the circuit court of the United States for the district of South Carolina, with the bond required by law. On the 17th of March the petition and bond were approved by the judge of the state court, and an order removing the case was entered. The condition of the bond required the defendant to file a copy of the record in the circuit court on the 1st day of its next session, which was the 2d day of April. The plaintiff, in order to enable itself to move to remand the case, filed a transcript of the record in the circuit court on the 23d of March. Its motion to remand was denied, and thereupon, on the 2d of April, the defendant filed a copy of the record. The circuit judge thereupon required the defendant to plead forthwith, and ordered that the case be put upon the trial calendar to be called for trial at the then pending term. On the 7th of April the defendant filed its answer, and the case was placed on the trial calendar. The defendant excepted to the order compelling it to plead forthwith, claiming that it was entitled to as many days in which to plead as were unexpired of the time allowed it by the judge of the state court at the date of filing its petition for removal. It also excepted to the order placing the case upon the trial calendar for that term, for the reason that, by section 276 of the Code of South Carolina, in all issues to be tried by the court or jury the plaintiff is required to file his complaint and summons in the clerk's office at least 14 days before the term. The circuit judge (Simonton), in refusing a motion to modify the order requiring the defendant to plead forthwith, and placing the case on the trial calendar, stated his reasons as follows: 'This is a motion to modify the order of 5th inst., requiring the defendants to file their answers forthwith, and directing the case to be called for trial at this term. The defendants rely on the case of Pelzer Manuf'g Co. v. St. Paul Fire & Marine Ins. Co. (decided in this court) 40 F. 186. The rule is this: When, under the Code of Civil Procedure, a defendant is served with a summons requiring him to answer or demur within twenty days from the service thereof, and pending the twenty days a petition and bond in a removal case are filed in the state court, when the record comes here it is examined, and in computing the twenty days none of the days are counted during the suspension of the jurisdiction of the state court and the resumption of procedure in this court. From the entry of the record here, it comes within our rules of procedure. And so, also, if, within the twenty days, a state judge enlarges the time by giving so many days more within which to file the answer, the same rule applies; only those days are counted in which the defendant could file his answer with the record. But in the case at bar the defendants did not have so many days within which to put in their answers. They were required by the order of the state court to put in their answers on or before a day fixed and certain,-- 10th March. When the records come here, they come with that order in full force. No days can be omitted from the computation, because the day is fixed,-- 10th March. No allowance is made for suspension. We examine the record, and see that the 10th of March had elapsed, and that no answer had been put in. It is said that defendants can construe the order as if it allowed so many days counting the days between the date of the order and the 10th March. But, for reasons of his own, the state judge did not say so. He fixed a day, allowing no chance of intermission or suspension, and required the answer on that day. Under the rule stated above, we come within the exigency of the order enlarging the time, for only certain days are counted. It is not within our power now, the day having elapsed, to [65 F. 630] change his language or make a different order. If we fix a different day than the 10th March, we change the order of the state judge in a material point. If inevitable circumstances had arisen preventing the fulfillment of this order, we could consider them. But defendants had it within their power at any time between the filing of the petition, and the 10th of March, to enter a transcript of the record here, and get the active interference of this court. The whole scheme and purpose of the removal acts are to prevent the use of them for delay. Scarcely a case, if any, can be found in which the filing of the record in the circuit court and the filing of the defense were not contemporaneous. The record must be filed on or before the first term of the circuit court of the United States next succeeding the filing of the petition and bond. The construction contended for could be used to work delay, and forbids the court to be liberal in its judgment.'

On the 7th of May a jury was sworn, and the trial began. The case was an action on a $15,000 five-year policy of insurance against loss or damage by windstorms, cyclones, or tornadoes, issued by the plaintiff in error to the Charleston Bridge Company, the defendant in error, 'on their frame and iron bridge, including wooden approaches, iron spans, and draw over the Ashley river, at the foot of Spring street, Charleston, S.C.' The policy contained the following written clause: 'This company is not liable for any loss or damage that may occur by reason of high water,...

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11 practice notes
  • Gillis v. Sun Ins. Office, Limited
    • United States
    • California Court of Appeals
    • November 26, 1965
    ...130; Pearl Assur. Co. v. Stacey Bros. Gas Const. Co. (6 Cir. 1940) 114 F.2d 702; Phenix Ins. Co. v. Charleston Bridge Co. (4 Cir. 1895), 65 F. 628; Sun Ins. Office, Ltd. v. Guest Camera Store, Inc. (1963) 108 Ga.App. 339, 132 S.E.2d 851; Gerhard v. Travelers Fire Ins. Co. (1945) 246 Wis. 62......
  • St. Louis, Iron Mountain & Southern Railway Co. v. Aven
    • United States
    • Supreme Court of Arkansas
    • October 19, 1895
    ...2 Thomps. Neg. 1084; Addison on Torts, 5; 29 S.W. 980; 4 Gray (Mass.), 397; 57 Ark. 414; 99 Mass. 605; Wills, Cir. Ev. p. 157; 50 N.W. 365; 65 F. 628; 115 Mass. 307; 34 A. & E. R. Cases, 551; 97 Mass. 258, 267; 98 id. 580; 148 id. 486. The liability of defendant is the same as that of a mun......
  • Beattie Bonded Wrhse. Co. v. General Acc. F. & LA Corp., Ltd., Civ. A. No. 69-237.
    • United States
    • United States District Courts. 4th Circuit. United States District Court of South Carolina
    • July 20, 1970
    ...defendant's policy. Granger v. Aetna Ins. Co. (4th Cir. 1965) 344 F.2d 942, 943; Phenix Ins. Co. v. Charleston Bridge Co. (4th Cir. 1895) 65 F. 628, Let judgment be entered for the defendant, And it is so ordered. --------Notes: 1 Firemen's Insurance Co. of Newark v. Senseney (4th Cir. 1957......
  • Nelson v. Devney, No. 6573.
    • United States
    • United States Courts of Appeals. United States Court of Appeals (7th Circuit)
    • March 3, 1939
    ...its judicial discretion in imposing the conditions. Quilhot v. Hamer, C.C., 158 F. 188; Phenix Ins. Co. v. Charleston Bridge Co., 4 Cir., 65 F. 628; Whitcomb v. Gandy, C.C., 37 F. Appellant contends that the court abused its discretion by imposing the condition that he proceed to trial at t......
  • Request a trial to view additional results
11 cases
  • Gillis v. Sun Ins. Office, Limited
    • United States
    • California Court of Appeals
    • November 26, 1965
    ...130; Pearl Assur. Co. v. Stacey Bros. Gas Const. Co. (6 Cir. 1940) 114 F.2d 702; Phenix Ins. Co. v. Charleston Bridge Co. (4 Cir. 1895), 65 F. 628; Sun Ins. Office, Ltd. v. Guest Camera Store, Inc. (1963) 108 Ga.App. 339, 132 S.E.2d 851; Gerhard v. Travelers Fire Ins. Co. (1945) 246 Wis. 62......
  • St. Louis, Iron Mountain & Southern Railway Co. v. Aven
    • United States
    • Supreme Court of Arkansas
    • October 19, 1895
    ...2 Thomps. Neg. 1084; Addison on Torts, 5; 29 S.W. 980; 4 Gray (Mass.), 397; 57 Ark. 414; 99 Mass. 605; Wills, Cir. Ev. p. 157; 50 N.W. 365; 65 F. 628; 115 Mass. 307; 34 A. & E. R. Cases, 551; 97 Mass. 258, 267; 98 id. 580; 148 id. 486. The liability of defendant is the same as that of a mun......
  • Beattie Bonded Wrhse. Co. v. General Acc. F. & LA Corp., Ltd., Civ. A. No. 69-237.
    • United States
    • United States District Courts. 4th Circuit. United States District Court of South Carolina
    • July 20, 1970
    ...defendant's policy. Granger v. Aetna Ins. Co. (4th Cir. 1965) 344 F.2d 942, 943; Phenix Ins. Co. v. Charleston Bridge Co. (4th Cir. 1895) 65 F. 628, Let judgment be entered for the defendant, And it is so ordered. --------Notes: 1 Firemen's Insurance Co. of Newark v. Senseney (4th Cir. 1957......
  • Nelson v. Devney, No. 6573.
    • United States
    • United States Courts of Appeals. United States Court of Appeals (7th Circuit)
    • March 3, 1939
    ...its judicial discretion in imposing the conditions. Quilhot v. Hamer, C.C., 158 F. 188; Phenix Ins. Co. v. Charleston Bridge Co., 4 Cir., 65 F. 628; Whitcomb v. Gandy, C.C., 37 F. Appellant contends that the court abused its discretion by imposing the condition that he proceed to trial at t......
  • Request a trial to view additional results

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