Tennessee Coal, Lumber & Tan-Bark Co. v. Waller

• Citation: 37 F. 545
• Parties: TENNESSEE COAL, LUMBER & TAN-BARK CO. et al. v. WALLER.
• Decision Date: 04 February 1889
• Court: U.S. District Court — Eastern District of Tennessee

37 F. 545

TENNESSEE COAL, LUMBER & TAN-BARK CO. et al. v. WALLER.

United States Circuit Court, E.D. Tennessee.

February 4, 1889

Washburn & Templeton, for complainants.

Andrews & Thornburgh and W. L. Welcker, for respondent.

KEY, J.

Defendant's counsel argue, and refer to many authorities to show, that the bill in this case is an original bill, and not merely incidental or supplementary to the cause it seeks to review. Complainants' solicitors make no point against removal on this ground, and it will therefore not be considered.

The reason urged for remanding this cause is that the application for removal came too late. The matter is by no means free from difficulty. The bill was filed March 15, 1888. The defendant therein is a nonresident, and there was no service or process upon him. Under the laws of the state, publication was made requiring the appearance of the defendant. By the same authority the first Monday of each month is made a rule-day, and it is stated that a rule of the court in which the bill was filed provides that defendants shall appear at the next rule-day after service of process, and plead, demur or answer, or judgment pro confesso may be taken. The first rule-day after the bill was filed, and to which it was returnable, was the first Monday in May, 1888. The next term of the court after the bill was filed met second Monday in September, 1888. The rule of chancery court as to non-resident defendants requires them to appear at a rule-day, and the defendant shall plead, answer, or demur before the first rule-day after the one named for his appearance. The publication herein required Waller to appear on the first Monday in May; and, by the rule mentioned should he not appear then or before the following rule-day,-- first Monday in June, 1888,-- and plead, demur, or answer, judgment pro confesso might be taken. Before the June rule-day defendant's counsel filed a written motion 'to take from the files the bill purporting to be a bill of review,' for various reasons therein stated. This was an appearance on the part of the defendant under the order of publication. This motion prevented a judgment pro confesso and was not and could not be disposed of, perhaps, until the court met in regular session in September. At the September term the motion was disallowed, whereupon a demurrer was interposed and overruled, and immediately thereafter, and during the term, an application for removal was made, and the removal ordered. Complainants' solicitors insist-- First that after the motion to take the bill from the files, and after demurrer, both of which were disposed of, it is too late to remove; second, if this be not so, it was too late to have a removal, unless the application therefor was made at or before the rule-day in June, 1888. Section 3, act March 3 1887, makes provision that in cases like this the party desiring to remove his suit 'may make and file a petition 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 rules of the state court in which such suit is brought to answer or plead to the declaration or complaint. ' The act of 1875 required the petition for removal to be filed 'at or before the term at which said cause could be first tried, and before the trial thereof. ' It might be filed at any time during the first trial term, unless there was a trial. In case of trial, the application must be made before trial. The supreme court of the United States, in construing this provision of the act of 1875, have held that the trial of a demurrer which goes to the merits of a cause is a trial in the sense of the clause referred to in the law of 1875, and that a petition for removal, made after the action of the court on the demurrer, came too late. Alley v. Nott, 111 U.S. 472-477, 4 S.Ct. 495; Laidly v. Huntington, 121 U.S. 180-182, 7 S.Ct. 855. The act of March 3, 1887, does not provide that the petition for removal shall be filed before trial, or even before the party answers or pleads, but it must be made at the time (or before) the defendant is required to answer or plead. This means, obviously, at the term at which he is required to answer or plead, if the cause be returnable to such term, notwithstanding motions and demurrers have been...