Ransom v. Sipple Truck Lines

• Decision Date: 30 November 1943
• Docket Number: No. 84,85.,84
• Parties: RANSOM v. SIPPLE TRUCK LINES, Inc., et al. (two cases).
• Court: U.S. District Court — Northern District of Iowa

52 F. Supp. 521

RANSOM v. SIPPLE TRUCK LINES, Inc., et al. (two cases).

Nos. 84, 85.

District Court, N. D. Iowa, Cedar Rapids Division.

November 30, 1943.

Ralph Wilson and Grimm, Elliott, Shuttleworth & Ingersoll, all of Cedar Rapids, Iowa, for plaintiffs.

John D. Randall, of Cedar Rapids, Iowa, for defendants.

DELEHANT, District Judge.

A single memorandum is being filed in these two cases in which essentially identical issues are before the court for immediate decision.

The cases were brought to this court by removal, upon the joint petition in each case of both defendants, from the District Court of Iowa, within and for Benton county, where they were instituted for the recovery of judgments against the defendants for damages allegedly sustained in consequence of an automobile accident that occurred on June 25, 1941. The plaintiff in each case seasonably filed a motion to remand upon the ground that the proceedings for removal were not taken within the statutory time. It is to those separate motions that this memorandum is principally addressed.

The controlling federal statute is Section 29 of the Judicial Code, Title 28 U.S. C.A. § 72, by which it is provided that, "Whenever any party entitled to remove any suit mentioned in section 71 of this title, except suits removable on the ground of prejudice or local influence, may desire to remove such suit from a State court to the district court of the United States, he may make and file a petition, duly verified, in such suit in such State court 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, for the removal of such suit into the district court to be held in the district where such suit is pending, and shall make and file therewith a bond, with good and sufficient surety, for his or their entering in such district court, within thirty days from the date of filing said petition, a certified copy of the record in such suit, and for paying all costs that may be awarded by the said district court if said district court shall hold that such suit was wrongfully or improperly removed thereto," etc.

The jurisdictional step for removal, therefore, is the defendant's filing the petition and bond for removal in the state court, "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." The formal regularity of the instant petitions and bonds for removal, and the general removability of the actions being unchallenged, the only issue is whether the petition and bond were filed in the state court within the statutory time.

It is consistently held that the foregoing limitation of time for the initiation of removal proceedings is strictly to be followed and that a federal District Court may not, in the face of a motion to remand, retain jurisdiction of a removed cause where the petition for removal was filed at any time, however early, after "the time * * * the defendant is required by the laws of the State or the rule of the State court * * * to answer or plead." Interestingly, among the cases most frequently cited in support of the rule are reported opinions from this district and from the Supreme Court of Iowa. Wilson v. Big Joe Block Coal Co. et al., 135 Iowa 531, 113 N. W. 348, 14 Ann.Cas. 266; Markey v. Chicago, M. & St. P. Ry. Co., 171 Iowa 255, 153 N.W. 1053; Waverly Stone & Gravel Co. v. Waterloo, C. F. & N. Ry. Co., D.C. N.D. Iowa, 239 F. 561; Batchelder v. Quimby Land Co., D.C.N.D.Iowa, 267 F. 483. The Supreme Court of the United States has emphatically affirmed the rule. Kansas City, F. S. & M. R. Co. v. Daughtry, 138 U.S. 298, 303, 11 S.Ct. 306, 34 L.Ed. 963; Martin's Adm'r v. Baltimore & O. R. Co., 151 U.S. 673, 687, 14 S.Ct. 533, 38 L. Ed. 311.

The mandatory character of the prescription of the time for the filing of the petition and bond for removal is emphasized in many decisions of the circuit and district courts of the United States. Tennessee Coal, Lumber & Tan-Bark Co. v. Waller, C.C.E.D.Tenn., 37 F. 545; Austin v. Gagan, C.C.N.D.Cal., 39 F. 626, 5 L.R.A. 476; Velie v Manufacturers' Accident Indemnity Co., C.C.E.D.Wis., 40 F. 545; Spangler v. Atchison, T. & S. F. R. Co., C.C.W.D.Mo., 42 F. 305; Ruby Canyon Gold Mining Co. v. Hunter, C.C.W.D.S.D., 60 F. 305; First Littleton Bridge Corp. v. Connecticut River Lumber Co., C.C.N.H., 71 F. 225; Lee v. Continental Insurance Co., D.C.E.D.Ky., 292 F. 408; American Fountain Supply & Products, Inc., v. California Crushed Fruit Corporation, D.C. Minn., 21 F.2d 93; Thomason v. Davis, D. C.W.D.La., 51 F.2d 1059; Zeagler v. Hunt, D.C.W.D.La., 38 F.Supp. 68; Coco v. Altheimer, D.C.W.D.La., 46 F.Supp. 321; McCallum v. General American Oil Co. of Texas, D.C.W.D.Ark., 21 F.Supp. 401; Boss v. Irvine, D.C.W.D.Wash., 28 F. Supp. 983; Madden v. New York Life Ins. Co., D.C.Idaho, 29 F.Supp. 701; Saldibar v. Heiland Research Corp., D.C.S.D.Tex., 32 F.Supp. 248; Wofford v. Hopkins, D. C.W.D.Tex., 45 F.Supp. 257; Ricciardi v. Lazzara Baking Corp., D.C.N.J., 32 F.Supp. 956; Bolling v. Merchants & Business Mens Mutual Fire Ins. Co., D.C.W.D.Va., 39 F.Supp. 625. Cases in great number and from virtually every federal jurisdiction might be added, without any essential variety of opinion upon the general question.

The same stringency is to be observed in the pertinent decisions of the courts of last resort of many, if not all, of the states, of which an instructive example (in addition to the Iowa authorities cited) is Southwest Power Co. v. Price, 180 Ark. 567, 22 S.W.2d 373.

Fortifying the strict administration of the statutory time limit, it has become settled that the reference to the prescription of time to answer or plead by "the rule of the State court" is to a permanent rule of general application and effect, where the time to plead or answer is determined by rule and not by statute; Waverly Stone & Gravel Co. v. Waterloo, C. F. & N. Ry. Co., supra; Bolling v. Merchants & Business Mens Mutual Fire Ins. Co., supra; that the critical time is the time originally specified for answer or plea, and not some later date allowed for answer or plea by judicial grace, Wilson v. Big Joe Block Coal Co., supra; Velie v. Manufacturers' Accident Indemnity Co., supra; Spangler v. Atchison, T. & S. F. R. Co., supra, or by stipulation of the parties, Madden v. New York Life Ins. Co., supra. Thus the time prescribed by Title 28 U.S. C.A. § 72, is not the time when, in a specific case by reason of developments in it, the defendant is actually required to answer or plead, but rather the time when, by statute or general rule of court, as the case may be, divorced from any specific development or indulgence in the suit, he is required either to answer or to plead. And upon the highest authority, Martin's Adm'r v. Baltimore & Ohio Railroad Co., 151 U.S. 673, 687, 14 S.Ct. 533, 538, 38 L.Ed. 311, it has been asserted that "the petition for removal should be filed in the state court as soon as the defendant was required to make any defense whatever in that court", even a plea in abatement, though the original time for answer, as distinguished from a preliminary plea, might not have expired. True, that construction of the removal statute has sometimes been criticised as dictum by certain lower federal courts that were reluctant to follow it. E. g., Mahoney v. New South Building & Loan Ass'n, C.C.W.D. Va., 70 F. 513, and Wilson v. Winchester & P. R. Co., C.C.W.Va., 82 F. 15, affirmed with only slight consideration 4 Cir., 99 F. 642, 645. But the rule suggested was reiterated in Goldey v. Morning News, 156 U. S. 518, 15 S.Ct. 559, 39 L.Ed. 517. And, even as dictum, it is and should be persuasive to the judges of the District Courts and the Circuit Courts of Appeal. See Arrigo v. Commonwealth Casualty Co., D.C. Md., 41 F.2d 817, in which the Supreme Court's position upon the question is examined and discussed. Finally, it recognizes, and is responsive to the alternative use in Title 28 U.S.C.A. § 72 of the language "answer or plead", and is in harmony with the acknowledged policy of the Congress and the courts to restrict rather than to amplify the jurisdiction of the federal District Courts under the removal statute.

There is no occasion here to consider whether, or how far, a party against whom removal has been sought unseasonably may understandingly, or inadvertently, waive the question of the timeliness of removal. That the time of filing the petition for removal is not jurisdictional, but rather "modal and formal" is true. Powers v. Chesapeake & O. Ry. Co., 169 U.S. 92, 18 S.Ct. 264, 266, 42 L.Ed. 673. But there is no waiver in either of these cases. On the contrary, the plaintiff in each instance has promptly challenged the removal on the ground alone that it was tardy.

The critical question is whether the petition and bond for removal were filed in time; and for its solution certain salient features of the cases and of the statutes of Iowa will be noted.

In each case, the petition in the state court was filed on June 21, 1943. On that day also the "original notice" directed to both defendants, required by the law of Iowa on the institution of suit was filed, together with a sheriff's return that neither defendant could be served by him. In each case there is a showing of the lodging with the Commissioner of the Public Safety Department of the state of Iowa of a copy of the original notice of suit together with a fee of two dollars, all under date of June 21, 1943. There is also shown in each case by affidavits filed later in the state court the mailing by restricted registered mail to the individual defendant of two separate notifications of filing with the Commissioner, one sent to a supposed "last known...