S.M. Hamilton Coal Co. v. Watts
| Decision Date | 11 April 1916 |
| Docket Number | 57. |
| Citation | 232 F. 832 |
| Parties | S. M. HAMILTON COAL CO. v. WATTS. |
| Court | U.S. Court of Appeals — Second Circuit |
This is a writ of error to review an order of the District Court vacating a judgment of dismissal and setting the cause down for trial upon the docket of the court. The action was originally brought in the state court by service of a summons without complaint, on July 13, 1907. An appearance was entered on July 30th for the defendant, and on August 15 1907, the plaintiff served his complaint for breach of contract in the sum of $4,524.95, with interest. On September 24, 1907, the defendant removed to the United States District Court for the Eastern District of New York, and on October 3d filed its answer with the clerk of that court; the removal papers being filed in the clerk's office on October 2d. According to one version of the facts the answer was first served on November 1, 1907. Whether served before or not, in any case it was served on that day and retained by the attorney for the plaintiff, and the case was noticed for trial by the defendant's attorney on November 8th, and a cross-notice served on the same day. On November 18th on the call of the calendar the case was set over until the next term. On January 19, 1909, over a year after, it was set down for trial for February, 1909, and on the February call was marked for March 9th. It was eventually reached for trial on April 5, 1909, and the defendant then took a default before Judge Chatfield, who directed notice to be given to the plaintiff's attorney that judgment of dismissal would be taken. The proposed order, with notice of settlement, was served on the plaintiff's attorney on April 13, 1909. The order was submitted to the court on April 17, and was signed on April 20, 1909, the mandatory part of it reading as follows: 'Ordered that plaintiff's complaint herein be dismissed for failure to prosecute and that the defendant have judgment accordingly, with costs as taxed,' etc. A copy of the order as signed was duly served upon the plaintiff's attorney on April 23, 1909, but nothing further was done until June 20, 1914, when a notice of motion was served by new attorneys for the plaintiff, upon which the order was entered vacating the order of dismissal and restoring the cause to the docket for the reasons stated below. A writ of error was sued out by the defendant.
The plaintiff himself swears that he personally inquired at the clerk's office on October 28, 1907, and again on October 29, 1907, this time in the company of his wife. He examined an answer then on file, and found that it contained an admission that 'plaintiff procured the contract' for the defendant, for procuring which the complaint asked for a commission. He also found that the verification to the answer was undated, that under the name of the notary public appeared only the word 'Notary,' and that it bore no notary's seal. Plaintiff and his wife thereupon visited their attorney on the same day and saw in his possession a copy of the answer, which conformed to the answer which they had seen in the clerk's office. The plaintiff told his attorney then to enter a judgment in his favor on the ground that the answer was a nullity. On November 6, 1907, the plaintiff and his wife went again to their attorney's office, who told them that the answer was still the same, and still refused to enter the judgment by default. On November 11, 1907, the plaintiff called at the clerk's office found the note of issue of November 8th, and an answer which he insists was different from the earlier one. In place of the words 'procured the contract' occurred the words 'contributed to the procurement of such contract,' the answer now had a notary's seal upon it, after the word 'Notary' appeared the word 'Public,' and the verification had been dated September 20, 1907. On November 18th, on still another visit to the clerk's office, the clerk told the plaintiff that the case would probably not be reached for two or three years.
Barry, Wainwright, Thacher & Symmers, of New York City (Herbert Barry, of New York City, of counsel), for plaintiff in error.
McLear & McLear, of New York City, for defendant in error.
Before COXE and WARD, Circuit Judges, and LEARNED HAND, District judge.
LEARNED HAND, District Judge (after stating the facts as above).
An order of the character now under review,...
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