Wilcox & Gibbs Guano Co. v. Phoenix Ins. Co. of Brooklyn

• Decision Date: 05 April 1894
• Court: U.S. Court of Appeals — Fourth Circuit
• Parties: WILCOX & GIBBS GUANO CO. v. PHOENIX INS. CO. OF BROOKLYN. CHARLESTON BRIDGE CO. et al. v. AMERICAN FIRE INS. CO. MT. PLEASANT & S. I. FERRY CO. v. HOME INS. CO. OF CITY OF NEW YORK. CHARLESTON BRIDGE CO. et al. v. SAME. SAME v. PHOENIX INS. CO.

60 F. 929

WILCOX & GIBBS GUANO CO. v. PHOENIX INS. CO. OF BROOKLYN.

CHARLESTON BRIDGE CO. et al. v. AMERICAN FIRE INS. CO.

MT. PLEASANT & S. I. FERRY CO. v. HOME INS. CO. OF CITY OF NEW YORK.

CHARLESTON BRIDGE CO. et al. v. SAME.

SAME v. PHOENIX INS. CO.

United States Circuit Court, D. South Carolina.

April 5, 1894

Bryan &amp Bryan, Ficken & Hughes, and Buist & Buist (Mitchell & Smith of counsel), for plaintiffs.

Trenholm Rhett & Miller, for defendants.

SIMONTON Circuit Judge.

These are motions to remand the causes to the state court. In each of them the same question is presented. In the second case an additional ground for removal peculiar to it is suggested. The plaintiff began several actions in the court of common pleas for the county of Charleston, S. C., against the several defendants, by summons and complaint. The complaint of the Mt. Pleasant & Sullivan's Island Ferry Company was served on the defendant named therein on 25th January, 1894. The complaints in all the other cases were served on the defendants named in them, respectively, on 27th January 1894. On 5th February, 1894, his honor, D. A. Townsend, a circuit judge of the state of South Carolina, out of term extended the time in which the defendants could file their answers in these several cases to 10th March, 1894.

The petitions for removal into this court were each filed with the clerk of the court of common pleas for Charleston county more than 20 days after the service of the several complaints upon the defendants, but within the period to which Judge Townsend had extended the time for answering; that is to say, some on 24th February, others on 5th March, 1894. The petition and bond in each case were presented to the court of common pleas at Charleston, were approved, and an order removing the cause entered. No further steps having been taken by the defendants, the plaintiffs, on 23d March, 1894, filed a transcript of the record in this court in each case, and thereupon, in each case, made a motion to remand the cause. Various grounds were set up in support of the motions.

First. The act of congress of 1887-88 (25 Stat. 435, § 3) requires the person desiring to remove a suit from the state court to this court 'to 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 rule of the state court in which such suit is brought, to answer or plead to the declaration of complaint of the plaintiff.' The Code of Civil Procedure of South Carolina requires a defendant to make his defense to a complaint within 20 days after the service thereof, and, in order to secure a removal of the cause, the petition and bond must be filed within this period. The extension of time allowed by the judge does not extend the period within which the petition for removal must be filed. In People's Bank of Greenville v. Aetna Ins. Co., 53 F. 161, a motion similar to these was made upon grounds essentially the same, and the motion was not granted. Counsel have asked a reconsideration of this case. The grounds upon which that case was decided have been carefully reconsidered; all the authorities quoted by counsel and others within reach have been examined. When is a defendant required, by the laws of South Carolina, to answer or plead to the complaint of a plaintiff? The Civil Code of Procedure has these provisions on this subject:

'The only pleading on the part of the defendant is either a demurrer or an answer. It must be served within twenty days after the service of a copy of the complaint.' Section 164.

'The time within which any proceeding in an action must be had after its commencement, except the time within which an appeal must be taken, may be enlarged upon an affidavit showing grounds therefor by a judge of the circuit court.' Section 405.

When then, is a defendant required, by the laws of South Carolina, to file his defense; that is, any defense whatever? Gerling v. Railroad Co., 14 S.Ct. 538. 'Required;' that is to say, when is this act 'rendered necessary or indispensable?' Cent. Dict. Until that period has elapsed he is not in default. Therefore, one test by which this question can be answered is, when does the defendant come in default? One is required to do an act when he must do it or suffer consequences. Up to the expiration of the time within which he may do the act he is safe. When that time expires he suffers the penalty. Under the laws of South Carolina, if a defendant, during the 20 days after service of the complaint, obtain no order enlarging the time for making defense, he will be in default if he do not file it within that period; but, if he have an order enlarging that time, he is not in default until the end of the time allowed him. Until then he is not obliged to make any defense whatever. He is not in default. He suffers no consequences. His right of removal has not been lost. This is the conclusion reached by this court as the law of the circuit in the case of People's Bank of Greenville v. Aetna Ins. Co., 53 F. 161. The same rule prevails in the second circuit, where the same Code of Procedure exists as in South Carolina. Rycroft v. Green, 49 F. 177. This would also seem to be Judge Hammond's opinion in Turner v. Railroad Co., 55 F. 689.. And if the test be, when is the defense due? this would seem to be the result of Railroad Co. v. Daughtry, 138 U.S. 298, 11 S.Ct. 306. The point made has not been decided by any court of paramount authority. The learning and research of counsel have brought to the attention of the court a number of cases in circuit courts of the United States, nearly all of them in the eighth and ninth circuits. An examination of these cases shows that in very few of them, not exceeding two, the precise question involved in this case was decided, although the learned judges in many of them indicate opinions valuable indeed, but not conclusive on the point. Thus, in Delbanco v. Singletary, 40 F. 177, Judge Sabin, of Nevada, holding the circuit court, held that where defendant had filed a demurrer to a complaint which was sustained, and, the plaintiff having had leave to amend, leave was given to defendant to file his answer to amended complaint in 20 days, and the amended complaint was filed, and thereupon defendant filed his petition to remove, he was too late. We see in this case that, defendant having, during the period within which he was allowed to make his defense, an election of his forum, and having selected the state forum, the right of election ended. The right of removal was lost, and the indulgence of the state court could not restore it. To the same effect is the case of McDonald v. Mining Co., 48 F. 593. The supreme court of the United States in the case of Gerling v. Railroad Co., 14 S.Ct. 533, above quoted, construes the removal act, when it uses the words, 'within which to file answer or plea,' as meaning not the technical answer or plea, but any defense whatever; and so, when a plea in abatement or other dilatory pleading is used, or a demurrer filed, this act terminates the right of removal after the period has expired. In Velie v. Indemnity Co., 40 F. 545, Judge Jenkins, eastern district of Wisconsin, remanded a cause, it appearing that the petitioner allowed the statutory period to elapse before putting in his petition for removal, relying on a stipulation with the plaintiff. The act of congress limits the time as provided by laws of the state. The stipulation between or consent of parties cannot repeal the law of the state, or give this court jurisdiction. In Hurd v. Gere, 38 F. 537, the defendant, after the time to answer had expired, obtained, contrary to the practice of the court, an ex parte order extending his time to answer, and then filed his petition. The case was remanded. The defendant having come within the terms of the act of congress, the state courts could not assist him by a valid order, still less by one that was invalid. In Austin v. Gagan, 39 F. 626, Sawyer, J., California, very properly held that a stipulation between parties could not extend the time fixed by act of congress, and by its terms limited to the provisions of the laws of the state. So, also, Martin v. Carter, 48 F. 596, decides the same point in the same way; and in Rock Island Nat. Bank v. J. S. Keator Lumber Co., 52 F. 897, the same judge (Knowles), in the same court, held that a stipulation between parties, made after the time for answering had expired, could not give the right to remove. In Dixon v. Telegraph Co., 38 F. 377 (Sawyer, J.), not only had the time for answering...