Saldibar v. Heiland Research Corporation

• Decision Date: 21 March 1940
• Docket Number: No. 64.,64.
• Citation: 32 F. Supp. 248
• Parties: SALDIBAR et al. v. HEILAND RESEARCH CORPORATION, Inc.
• Court: U.S. District Court — Southern District of Texas

32 F. Supp. 248

SALDIBAR et al. v. HEILAND RESEARCH CORPORATION, Inc.

No. 64.

District Court, S. D. Texas, Corpus Christi Division.

March 21, 1940.

H. K. Stanfield and Charles J. Lieck, both of San Antonio, Tex., for plaintiffs.

Eskridge & Groce, of San Antonio, Tex., for defendant.

ALLRED, District Judge.

Plaintiffs filed this suit for damages on October 21, 1939, in the District Court of Live Oak County, Texas, against the named defendant and W. F. Odem. Citation issued and was served October 28th commanding the defendant to appear and answer therein on Monday, December 25, 1939. Thus service was had upon the removing defendant almost sixty days before the return date (the Texas statute, Art. 2009, R.C.S.1925, requiring service at least ten days before the first day of the term exclusive of the day of service and return).

According to a certificate of the State District Judge in the amended order of removal dated January 12, 1940 the term of court (having been fixed by statute), began December 25, 1939, "* * * and the Court having decided not to hold court on Christmas Day, or on Tuesday, December 26, 1939, because not practicable to hold court on such days and having ordered the Clerk to notify all counsel having appearance or other causes at this term that the court would not be open or available for the transaction of business, or call of the appearance docket, until Wednesday, December 27, 1939, at 10:00 a.m., in accordance with Art. 2153, R.S., and the defendant's attorneys in this cause having been so notified by the Clerk, but this order is made and entered before the close of this, the December, 1939, term of this court."

The term of the 36th Judicial District Court meeting in Live Oak County, Texas, is fixed by statute, Art. 199, R.C.S.Tex. 1925, to open "on the sixteenth Monday after the first Monday in September," this falling on December 25, 1939.

Article 2009, R.C.S.1925, requires the defendant to answer "on or before the second day of the return term, and before the call of the appearance docket on said second day." (Italics supplied.)

Article 2152 reads as follows: "The second day of each term of the district or county court is termed appearance day."

Article 2153 reads: "On appearance day of each term, or as soon thereafter as practicable, the court shall call, in their order, all the cases on the docket which are returnable to such term."

Article 2154 reads: "Upon the call of the appearance docket, or at any time after appearance day, the plaintiff may take judgment by default against any defendant who has been duly served with process and who has not previously filed an answer."

Presumably because the State Court Judge had the clerk to notify counsel that he would not call the appearance docket until December 27th, defendant did not file its removal petition until that date, which was one day after appearance day. The petition and bond erroneously asked for the removal of the case to the United States District Court for the Western District of Texas. Later, upon this being called to the attention of defendant's counsel by the attorneys for plaintiffs, who also contended that the petition and bond for removal had been filed too late, defendant, with leave of the State Court Judge, and over plaintiffs' objections, amended the petition and bond so as to call for removal to the Southern District of Texas.

Plaintiffs move to remand on two grounds: first, that the petition, bond and order for removal could not be amended; second, that the petition and bond were filed too late.

Authorities are uniform that where the jurisdictional grounds for removal are correctly stated, matters of form or technical defects may be amended. A petition for removal incorrectly designating the division of the district to which the case was removed is subject to amendment. Hodge v. Chicago & A. Ry. Co., 8 Cir., 121 F. 48. See also Hadfield v. Northwestern Life Assurance Co., C. C. Wis., 105 F. 530; Wilcox & Gibbs Guano Co. v. Phoenix Ins. Co., C.C., 60 F. 929.

The cases cited by plaintiffs, Frisbie v. Chesapeake & O. R. Co., C.C., 59 F. 369, Brigham v. C. C. Thompson Lumber Company, C.C., 55 F. 881, Thompson v. Ward, D.C., 199 F. 861, deal with substantive defects in a petition for removal.

The second ground raises a more serious question. The removal statute, Tit. 28, Sec. 72, U.S.C., 28 U.S.C.A. § 72, provides that the party entitled to remove "* * * may make and file a petition, duly verified, in such suit in such State court at the time, or 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 * * *." (Italics supplied.)

Authorities construing this statute are numerous and the question is not clearly settled. The weight of authority, however, is that the statute should be strictly construed; and that where the petition for removal is not filed in the State court before or at the time when the defendant is required by law to plead in that court, the case must be remanded. Martin v. Baltimore & O. Ry. Co., 151 U.S. 673, 14 S.Ct. 533, 38 L.Ed. 311; Goldey v. Morning News, 156 U.S. 518, 15 S.Ct. 559, 39 L.Ed. 517; Arrigo v. Commonwealth Casualty Co., D. C. Maryland, 41 F.2d 817; Wayt v. Standard Nitrogen Co. et al., C. C. Ga., 189 F. 231; American Fountain Supply & Products Co. v. California C. F. Corp., D. C. Minn., 21 F.2d 93; Adams v. Puget Sound Traction, Light & Power Co., D. C. Wash., 207 F. 205; Williams v. Wilson Fruit Co., D.C. Idaho, 222 F. 467; Thomason v. Davis et al., D.C.La., 51 F.2d 1059; Yuba City Box Co. v. Liverpool & London & Globe Ins. Co., D.C. Cal., 33 F.2d 909.

Under the Texas statute (Art. 2009, supra), the defendant is required to answer "on or before the second day of the return term, and before the call of the appearance docket on said second day." (Italics supplied.) Of course, Art. 2153 contemplates the calling of the appearance docket on the second day; and while, if it is not practicable to...