Tortat v. Hardin Min. & Mfg. Co.

• Citation: 111 F. 426
• Parties: TORTAT v. HARDIN MIN. & MFG. CO.
• Decision Date: 30 October 1901
• Court: U.S. District Court — District of South Dakota

111 F. 426

TORTAT v. HARDIN MIN. & MFG. CO.

United States Circuit Court, D. South Dakota, Western Division.

October 30, 1901

McLaughlin & McLaughlin, W. R. Steele, and Hiram T. Gilbert, for defendant.

Chambers Keller, for plaintiff.

CARLAND District Judge.

On the 25th day of July, 1901, Henry A. Tortat commenced an action in the circuit court for the county of Lawrence, state of South Dakota, against the Hardin Mining & Manufacturing Company, wherein the plaintiff sought to recover from the defendant the sum of $11,000, with interest at the rate of 7 per cent. per annum from July 1, 1901. The plaintiff claimed to be a creditor of the defendant company in the amount stated by reason of an assignment to him by one James D Hardin of a certain indebtedness claimed to be due from the defendant company to said James D. Hardin for work and labor performed for said defendant company, and for moneys advanced. Upon the summons issued in said action appears the following return:

'State of South Dakota, County of Lawrence-- ss.: I hereby certify and return that the within summons came into my hands on this 25th day of July, 1901, and I have served the same upon the within-named defendant by leaving a copy of said summons and complaint with James D. Hardin, one of the managers and directors of said company, by delivering to and leaving with him and each of them personally a true copy of the same at Deadwood. Lawrence county, South Dakota, on the 25th day of July, 1901, and that I know the person so served to be the same mentioned in said summons as defendant.

'Fred Doten, Sheriff of Lawrence County, South Dakota, 'By Fred W. Cindell, Deputy.

'Fees $1.80.'

Under the laws of the state of South Dakota the defendant company were required to answer the complaint attached to the summons in said action within 30 days after the service of the summons, exclusive of the day of service. On the 27th day of August the court in which said action was commenced, upon proof that no answer, demurrer, or appearance had been made in said action by the defendant, upon the sworn complaint of the plaintiff made and entered a judgment in favor of the plaintiff, Henry A. Tortat, and against the Hardin Mining &amp Manufacturing Company, in the sum of $11,117.55, together with the costs and disbursements in said action, amounting in the whole to $11,127.35. On the 26th day of September, 1901 the defendant, Hardin Mining & Manufacturing Company, a corporation organized and existing under the laws of the state of Illinois, filed in the circuit court for the county of Lawrence, state of South Dakota, its petition and bond for removal of said action to this court, on the ground of diversity of citizenship, Henry A. Tortat being a citizen of the state of South Dakota. The defendant accompanied said petition and bond for removal with a motion to set aside and quash the service of the summons and complaint in said action upon the defendant for certain reasons specified in said motion, which motion was supported and accompanied by the affidavit of Hiram T. Gilbert. Upon the filing of said petition and bond for removal, the circuit court for the county of Lawrence, state of South Dakota, made an order transferring the cause to this court, and directing the clerk to make up the record for that purpose. The state circuit court did not act upon the motion to quash and set aside the service of process in the action. A transcript of the record was duly made by the clerk of the state circuit court, and was filed in this court on September 27, 1901. On the 12th day of October, 1901, the defendant, by its counsel, served proper notice upon counsel for plaintiff that the motion made in the state court at the time of the removal of this cause would be brought on for hearing before this court on the 18th day of October, 1901, at the hour of 2 o'clock p.m., or as soon thereafter as counsel could be heard. In addition to the affidavit of Hiram T. Gilbert filed with the motion, other affidavits and proof have been submitted, both in support and in opposition to the granting of said motion. The plaintiff, by his counsel, on the 14th day of October, 1901 made a motion in this court to remand said cause to the state circuit court for the reason that the time in which the defendant could have removed the cause had expired prior to the filing of the petition and bond for removal, and also for the reason that there was no action or controversy pending between the parties that could be removed at the time the order of removal was made by the state circuit court. The motion filed by the defendant in the state circuit court was special, and for the purpose only of moving to set aside and to quash the service of process. The petition for removal also refers to the character of the appearance. However, under the authority of Railway Co. v. Brow, 164 U.S. 271, 17 Sup.Ct. 126, 41 L.Ed. 431, the filing of a petition and bond for removal in general terms is not such an appearance as would preclude the defendant from moving in this court to quash and set aside the service of process. If the case is properly removed, the motion which was filed in the state court, and not there determined, is properly before this court for decision, but the motion to remand raises the question as to whether or not the cause is properly here. On the fact of the record the time in which the defendant could appear and plead to the cause of action of the plaintiff had long expired before the petition and bond for removal was filed in the state court. In support of the motion to vacate and quash the service of process, however, there is submitted undisputed evidence that James D. Hardin, the assignor of the plaintiff, Tortat, was a director of the defendant, and the only director or officer thereof residing in South Dakota; that in order to sue the defendant company, of which he was a director, for certain demands which he claimed were due to him by the defendant company, he assigned, without any consideration whatever, to the plaintiff, Henry A. Tortat, the claims for which Tortat brought this action, with the distinct understanding between Hardin and Tortat that when Tortat should recover judgment the judgment should be assigned to Hardin, or whomsoever he should name. Tortat testifies that he had no interest in the matter whatever, and simply allowed his name to be used as plaintiff to accommodate Hardin. Tortat did not employ the...