Torrent v. S.K. Martin Lumber Co.

• Decision Date: 19 February 1889
• Citation: 37 F. 727
• Parties: TORRENT v. S.D. MARTIN LUMBER CO.
• Court: U.S. District Court — Western District of Michigan

37 F. 727

TORRENT v. S. D. MARTIN LUMBER CO.

United States Circuit Court, W.D. Michigan, Southern Division.

February 19, 1889

Uhl &amp Crane, for the motion.

Smith Nims, Hoyt & Erwin, contra.

SEVERENS J.

The plaintiffs commenced this action in the circuit court for the county of Muskegon by an attachment, for the purpose of recovering an alleged indebtedness due to them from the defendant. The defendant, at the time its appearance was due in that court, filed therein its petition for removal into the circuit court of the United States, setting forth that it was a corporation organized under the laws of Illinois having its principal place of business at Chicago, and that the plaintiffs were all citizens of the state of Michigan; and filed the requisite bond for entering the record in this court on the first day of the next term. The petition and bond were filed in the state court on the 3d day of January last. On the 29th day of the same month, upon the petition of the plaintiffs, and suggestion that the removal of the cause by the defendants was for the purpose of delay merely, and that there was reason to apprehend that the defendants would not file the transcript here within the proper time, this court entered an order giving the plaintiffs leave to file the copy of the record. The order went no further than that, and did not determine the consequences of filing the record here before the first day of the next term. On the 31st day of January the plaintiffs, pursuant to the leave so granted, filed the transcript in this court. On the 1st day of February they gave notice of the order and of the filing of the transcript to the defendant in Chicago, and on the next day entered the default of the defendant for want of an appearance, and also for want of a plea. This the defendant now moves to set aside.

The entry of the default must have been done, and could only be sustained, upon the theory that the time for pleading continued to run on uninterruptedly upon the removal into this court by the filing of the proper petition and bond in the state court, instead of being suspended. The defendant on the other hand, insists in its reasons for this motion, and upon the hearing it was argued, that the jurisdiction of this court did not fully attach upon the filing of the petition and bond, and will not be finally vested until the first day of the next term, at the time designated for filing the transcript; and it is said, in substance, that the case is dormant, and the court without power during the interval to move in it, except upon some emergency to preserve the statu quo. Finally, it is urged that the time for pleading is suspended during this period of dormancy, and revives only upon the arrival of the day when the record must be brought and filed here. I do not agree to the proposition that there is an intermediate state in which a case is resting after the filing of the petition and bond in the state court, and before the day when the record must be filed in the federal court, and in which the jurisdiction of the latter court is inchoate, and can only be exercised piecemeal, as necessity requires. On the contrary, it appears to me that the correct view of the matter is to regard the jurisdiction over the case as being absolutely and completely acquired by the federal court upon the instant when the state court loses it, and that is upon the proper filing of the petition and...