Todd v. SA Healy Co.
| Decision Date | 08 April 1943 |
| Docket Number | No. 182.,182. |
| Citation | 49 F. Supp. 584 |
| Parties | TODD v. S. A. HEALY CO. |
| Court | U.S. District Court — Eastern District of Kentucky |
B. J. Bethurum, of Somerset, Ky., for plaintiff.
Ben D. Smith, of Somerset, Ky., for defendant.
Plaintiff's motion to remand this suit to the Circuit Court of Pulaski County, Kentucky, from which it was removed, presents for determination the questions, (1) whether the petition for removal was timely filed, and (2) whether, by filing in the state court a motion to quash the service of the summons which was there sustained, the defendant waived its right to subsequently remove the cause to this court after valid service of summons.
Section 29 of the Judicial Code of the United States, 28 U.S.C.A. § 72, requires that a petition for removal be filed "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, * * *." This means that the petition for removal should be filed in the state court as soon as the defendant was required by local law to make any defense whatever in that court. Martin's Adm'r v. Baltimore & O. R. Co., 151 U.S. 673, 687, 14 S.Ct. 533, 38 L.Ed. 311.
The Circuit Courts of Kentucky are divided into two classes, viz.: courts of continuous session and term courts. As the Circuit Court of Pulaski County is a term court, we are not here concerned with the law of the State governing the time for pleading in courts of continuous session. A discussion of that subject may be found in the recent opinion of Judge Miller of the Western District of Kentucky in Marking v. New St. Louis & Calhoun Packet Co., D.C., 48 F.Supp. 680. Proceedings in civil actions in the Circuit Courts of Kentucky which are classed as term courts are governed by the Act of 1902 known as the "Practice Act", Ky. Civil Code of Practice, §§ 367a-1 to 367a-14, by which it is provided "that the first Monday in each month shall be rule day in the office of the clerk of each circuit court * * *" (Civil Code of Practice § 367a-1), and "At the first rule day after the summons has been served ten days in the county or twenty days in any other county, the defendant so served shall file his answer or other plea he may have, whether of law or of fact" (Civil Code of Practice § 367a-3).
The phrase "answer or other plea", as used in this section of the Kentucky Civil Code of Practice, includes any challenge to the jurisdiction of the court whether by a motion to quash the service of the summons or other permissible pleading, Brumleve v. Cronan, 176 Ky. 818, 827, 197 S.W. 498; Gainesboro Tel. Co. v. Buckner, 160 Ky. 604, 608, 169 S.W. 1000; Chesapeake, O. & S. W. R. Co. v. Heath's Adm'r, 87 Ky. 651, 656, 657, 9 S.W. 832, but the requirement that such "answer or other plea" be filed as well as the time for such filing is "after the summons has been served." Since, under the local law, service of the summons is an indispensable prerequisite to the requirement to file an "answer or other plea", and to limit the time for so doing, it is equally essential to the establishment of a time limitation upon the filing of a petition for removal.
The defendant is a nonresident corporation engaged in business in Russell County, Kentucky. Under the law of Kentucky, service of summons upon a private corporation engaged in business within the state may be accomplished only by delivering a copy thereof (Civil Code of Practice, § 48) to "the defendant's chief officer, or agent, who may be found in this State" or in the county wherein the action is brought (Civil Code of Practice, § 51, subd. 3) and "The chief officer or agent of a corporation which has any of the officers or agents herein mentioned is: First, its president; second, its vice-president; third, its secretary or librarian; fourth, its cashier or treasurer; fifth, its clerk; sixth, its managing agent." (Ky.Civil Code of Practice, § 732, subd. 33).
This suit was filed in the state court on September 11, 1942. It appears from the sheriff's return that on the same date a summons was served "by delivering a true copy to Carl Marzano, Superintendent of the Electrical Department of the Healy Company".
On October 1, 1942, the defendant, appearing specially, filed in the Pulaski Circuit Court a motion to quash the return on the summons on the ground that service of it on Carl Marzano did not constitute service on the defendant and gave the court no jurisdiction over the defendant corporation.
With its motion the defendant filed affidavits of its general manager and other officers showing that the defendant was never engaged in any business in Pulaski County, and had no officers or agents therein; that Carl Marzano, the person upon whom the process was served, was not an officer or managing agent of the defendant or otherwise connected with it except as a mere employee serving as a foreman over a small number of laborers engaged in work for the defendant in the construction of Wolfe Creek Dam in Russell County, Kentucky.
On October 21, 1942, the motion to quash was sustained by the Judge of the Pulaski Circuit Court by the following order: "This cause having been heard on the motion of the defendant, S. A. Healy Company, to quash the return on the summons herein, the defendant not entering its appearance for any other purpose, to which motion the plaintiff objected and the same having been submitted upon the affidavits of Richard J. Hill, Jr., V. L. Shupe, J. H. Jasper and Carl Marzano, the affidavit of J. H. Jasper filed by the plaintiff and the counter affidavit of John B. Alexander filed by the defendant, it is considered by the Court that said service and return is improper and the said motion of the defendant is sustained and said service and return on summons is not sufficient to show any service of summons on the defendant to which ruling of the Court the plaintiff objects and excepts."
On January 12, 1943, the plaintiff caused another summons to be issued and served upon the defendant's agent in Russell County, of which no complaint is made. Before the expiration of the time within which the defendant was required to answer or plead in response to this second summons, it filed its petition for removal.
The plaintiff contends that the service of the original summons on Carl Marzano on September 11, 1942, was valid service upon the defendant and put into operation the requirement of the state law that the defendant answer or plead at the first rule day which followed the expiration of ten days thereafter and, consequently, the removal petition was filed too late.
The applicable rule is stated in 4 Hughes' Federal Practice thus:
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Marks v. Pennsylvania R. Co., Civil Action No. 4012.
...D.C., 41 F. 2d 817; Wofford v. Hopkins, D.C., 45 F. Supp. 257, at page 260; and Seager v. Maney, D.C., 13 F.Supp. 617. Todd v. S. A. Healy Co., D.C., 49 F.Supp. 584, is perhaps to the contrary; there a special appearance was involved on the part of a non-resident defendant corporation in a ......