The Pennsylvania Co. v. Leeman

• Decision Date: 29 January 1903
• Docket Number: 20,004
• Parties: The Pennsylvania Company v. Leeman
• Court: Indiana Supreme Court

66 N.E. 48

160 Ind. 16

The Pennsylvania Company v. Leeman

No. 20,004

Supreme Court of Indiana

January 29, 1903

From Boone Circuit Court; B. S. Higgins, Judge.

Action by Enoch Leeman against the Pennsylvania Company. From a judgment for plaintiff, defendant appeals. Transferred from Appellate Court, under § 1337u Burns 1901.

Affirmed.

S. O Pickens, for appellant.

W. J Beckett and A. J. Shelby, for appellee.

OPINION

Gillett, J.

The appellee on the 13th day of August, 1900, filed his complaint in the Hendricks Circuit Court against appellant. On the 4th day of September, 1900, the latter filed a plea setting up a state of facts on which it based a challenge to the jurisdiction of the Hendricks Circuit Court to hear and determine the cause, and concluding with a prayer that the action abate. On the 18th day of September, 1900, appellant procured, and afterwards perfected, a change of the venue of said cause to the court below. Appellee filed a general denial to the plea in abatement, and on the 6th day of February, 1901, after a trial, said court entered a finding and judgment for appellee upon said plea. Appellee then filed an amended complaint in three paragraphs, and the court entered a rule against appellant to answer said complaint. Thereupon appellant filed its petition to remove said cause to the United States Circuit Court for the district of Indiana, on the ground commonly denominated as diverse citizenship, and at the same time filed its bond in that behalf, as required by law. The court approved the bond, but overruled the petition, and the appellant excepted to the latter ruling. Issues of fact were afterwards formed on the amended complaint, and a trial resulted in a verdict and judgment for appellee.

The leading question in the case is, did the court below err in overruling the petition for removal? Upon a compliance with the act of congress relative to the removal of causes (25 Stat. at Large, 433), the act provides that: "It shall then be the duty of the state court to accept said petition and bond, and proceed no further in such suit." If the appellant was entitled to the removal, the filing and presenting of a proper application and bond ipso facto deprived the trial court of the right to proceed further. Kern v. Huidekoper, 103 U.S. 485, 26 L.Ed. 354; Railroad Co. v. Koontz, 104 U.S. 5, 26 L.Ed. 643; Postal Tel. Cable Co. v. Southern R. Co., 88 F. 803; Mecke v. Valley Town Mineral Co., 89 F. 209. We are not called upon here to consider whether the writ of certiorari provided for by § 7, 18 Stat. at Large, 472, operates as a supersedeas. 4 Ency. Pl. & Pr., 205; Removal Cases, 100 U.S. 457, 474, 25 L.Ed. 593; Stone v. South Carolina, 117 U.S. 430, 6 S.Ct. 799, 29 L.Ed. 962. Even if the writ does not have that effect, the United States Circuit Court has power to bring about the same result by enjoining the plaintiff from prosecuting the action in the state court. French v. Hay, 89 U.S. 250, 22 Wall. 250, 22 L.Ed. 857; Dietzsch v. Huidekoper, 103 U.S. 494, 26 L.Ed. 497; Baltimore, etc., R. Co. v. Ford, 35 F. 170; Abeel v. Culberson, 56 F. 329. Where no such action is taken, however, and the defendant simply procures a transcript of the proceedings and files it in the United States Circuit Court, the result is, if both courts thereafter assert jurisdiction, that a case is presented where each court proceeds on its own responsibility in the matter of jurisdiction, both being ultimately subject to the control of the Supreme Court of the United States. As stated in Missouri Pac. R. Co. v. Fitzgerald, 160 U.S. 556, 582, 16 S.Ct. 389, 396, 40 L.Ed. 536: "If a state court proceeds to judgment in a cause notwithstanding an application for removal, its ruling in retaining the case will be reviewable here after final judgment under § 709 of the revised statutes. Stone v. South Carolina, 117 U.S. 430, 29 L.Ed. 962, 6 S.Ct. 799. If a case be removed to the circuit court and a motion to remand be made and denied, then after final judgment the action of the circuit court in refusing to remand may be reviewed here on error or appeal. Graves v. Corbin, 132 U.S. 571, 33 L.Ed. 462, 10 S.Ct. 196. If the circuit court and the state court go to judgment, respectively, each judgment is open to revision in the appropriate mode. Removal Cases, 100 U.S. 457, 25 L.Ed. 593."

We are unadvised as to whether the United States Circuit Court has asserted jurisdiction over this cause, and it appearing from the record that the court below refused to order the removal, and asserted its continued jurisdiction over the cause, we are called upon to determine whether the record shows error.

Counsel for appellee err in their contention that the error, if any, was waived by the appellant by defending itself in the court below after its petition had been denied. Removal Cases, supra; Insurance Co. v. Dunn, 86 U.S. 214, 19 Wall. 214, 22 L.Ed. 68; Kern v. Huidekoper, supra.

To entitle a defendant to a removal, on the ground mentioned, he must file his petition at or before the time when he 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," and make and file therewith a bond with good and sufficient surety conditioned as required by the statute. § 3, 25 Stat. at Large, 433, 435.

It has been held that the interposing of a demurrer, motion, or answer, before the time for the filing of answer is required, does not shorten the time for filing an application to remove. Gavin v. Vance, 33 F. 84; Duncan v. Associated Press, 81 F. 417. While doubt has been cast on the proposition stated, by Fidelity, etc., Co. v. Newport News, etc., Co., 70 F. 403, we will assume that the filing of the answer mentioned did not, per se, shorten the time to file answer. We therefore turn to the Indiana statutes relative to the making up of issues. Section 403 Burns 1901 provides that: "On the second and each succeeding day of the term, the court shall call as many of the causes which stand for trial at such term, for issues, as the business of the court will permit; * * * and shall compel the parties to file their respective pleadings and answers to interrogatories, at such time as the court shall deem just, in no case allowing unreasonable delay, and the pleadings shall be completed at an early day of the term." Section 367 of the code provides that: "Every action shall stand for issue and trial at the first term after it is commenced, when the summons have [has] been served on the defendants ten days, or publication has been made for thirty days before the first day of the term," and the proviso of that section authorizes the making of the cause returnable specially, upon a day in term, by indorsement upon the complaint, and that in that event, upon the completion of service, the action shall stand for issue and trial at such term. Section 1375 Burns 1901 authorizes the circuit court to adopt rules, etc.

As was said in Amsden v. Norwich Union Fire Ins. Soc., 44 F. 515, there is nothing explicit in the Indiana civil code in respect to the matter of answering or pleading, but the matter is left to be governed by the rules or practice of the court. The validity of a general rule was impliedly recognized in that case; and in Daugherty v. Western Union Tel. Co., 61 F. 138, the court refused to take jurisdiction of the cause because the application was made after the time allowed the defendant to answer under a general rule of the state court had expired. The record in this case does not show that the appellant was expressly ruled to answer until after the filing of the amended complaint. The rule at that time entered does not exclude the idea of the existence of a general rule that was perhaps inapplicable to the particular case. With a record silent as to whether there was a general rule of court respecting the filing of answers, and the burden upon the appellant to show error, and considering that the code contemplates that the issues shall be made up promptly, we think we may presume that the time when appellant was required to answer the complaint had expired when it tendered its application for removal.

Admitting that the plea that was filed afforded such an obstacle to the operation of a general rule to answer that an answer to the merits could not be required until the pending plea was disposed of, the question arises whether such plea was not an answer within the statute. This question has been determined. In Martin v. Baltimore, etc., R. Co., 151 U.S. 673, 686, 14 S.Ct. 533, 38 L.Ed. 311, it was said "This provision allows the petition for removal to be filed at or before the time when the defendant...