Wise v. Bolster

• Decision Date: 29 January 1940
• Docket Number: No. 117.,117.
• Citation: 31 F. Supp. 856
• Court: U.S. District Court — Western District of Washington
• Parties: WISE et al. v. BOLSTER et al.

31 F. Supp. 856

WISE et al. v. BOLSTER et al.

No. 117.

District Court, W. D. Washington, N. D.

December 29, 1939.

On Rehearing January 29, 1940.

Allan Trumbull, of Port Townsend, Wash., for plaintiffs.

Robert W. Maxwell, of Seattle, Wash., for defendants.

This action, removed to this court from the Superior Court of the State of Washington for Jefferson County upon the ground of diversity of citizenship and being the first of two similar actions commenced in the state court to recover damages resulting from injuries in an automobile accident, is now before this court upon an order to show cause directed to the plaintiffs in the second state court action, who are the same parties as the plaintiffs in this removed action, to show cause why they should not be restrained from prosecuting the second action in the state court.

The requisite diversity of citizenship, the right of removal and the right to the restrainer sought are all in question. The record now discloses the following facts and contentions:

In the first state court action in which only the removing defendants Bolster were originally joined as defendants they seasonably filed notice, petition and bond for removal, and their motion for change of judge to hear the cause. Thereafter plaintiffs in that action filed an amended complaint joining Alex Swanson, Superintendent of Streets, as an additional defendant. In that amended complaint, plaintiffs not only repeated their original charges of negligence against the original defendants but also alleged against the additional defendant Swanson that he, as Superintendent of Streets, negligently maintained the street where the alleged injuries occurred. Plaintiffs then moved in the state court for a voluntary dismissal of the first action which was purportedly granted by the state court, and forthwith filed their second action in the state court upon the same causes of action and against the same defendants as those named in the amended complaint in the first action. In the second action appearances by motions and demurrer directed against the complaint have been made by all defendants. Notwithstanding the purported dismissal by the state court of the first action defendants Bolster proceeded with their removal of it to this court and timely filed herein a transcript of the requisite removal record in the state court and procured the issuance by this court of the show cause order which together with plaintiffs' response thereto is now under consideration.

The defendant Cecil Bolster at all times material to this action has been and is now a soldier in active service with the United States Army, stationed at Fort Worden near Port Townsend, Jefferson County, Washington. He was at the time of his enlistment a resident of the state of Iowa and on the occasion of each re-enlistment, of which there have been two, he stated his residence to be the same.

Defendants Cecil Bolster and Helene Williams Bolster were married in this state after the automobile accident in question and before the commencement of this action. After that marriage and before this action was commenced Cecil Bolster maintained and he now maintains a home with his wife, Helene Williams Bolster, in a private residence off the military reservation where he performs his army service. Helene Williams Bolster was born and has always lived in Washington and there seems to be no question that she was a citizen of this state prior to her marriage with the defendant Cecil Bolster. No charge is made of fraudulent connection between marriage and removal. At the time of their marriage both of the defendants stated in their marriage papers that they were residents of Jefferson County, Washington. Cecil Bolster operates an automobile under a Washington state license. The defendant wife gave her residence as Port Townsend, Washington, when she entered a hospital there subsequent to her marriage with defendant Cecil Bolster, and she has a child by a former marriage attending public school in Port Townsend.

The defendants contend that the defendant Cecil Bolster at the time of his enlistment as a soldier was and ever since has been a citizen of the state of Iowa; that his wife, the defendant Helene Williams Bolster, became by operation of law likewise a citizen of that state upon her marriage with the defendant Cecil Bolster prior to the commencement of this action; and that both defendants at all times material to the action were and now are citizens of Iowa.

The citizenship of plaintiffs in the state of Washington is admitted, but the citizenship of defendants and of each of them in the state of Iowa is strenuously denied by plaintiffs. Plaintiffs also contend that defendants waived their asserted right to remove this action to this court by filing in the state court in this case their motion for change of state court judge after defendants had there filed the removal proceedings, and by appearing in the second state court case and moving to make more definite and certain and demurring to the complaint. There is also presented by the record the further question of whether in any event this court may properly restrain further state court proceedings in the second state court action which has not been removed to this court.

BOWEN, District Judge.

1. Referring first to the plaintiffs' contention that defendants have waived their right of removal, the rule is that merely filing an answer or doing nothing more than to make an appearance in the state court before the expiration of the time for removal does not waive that right nor prevent the defendant later within the time otherwise allowed from filing a petition for removal. Simkins Federal Practice (1934 Edition) page 1012, sec. 1142; 54 C.J. 210, 211, secs. 5, 6. Where a defendant filed at the same time a demurrer to the complaint in the state court and his petition for removal of the action therefrom to the federal court, it has been held that he did not by such demurrer subject himself to the jurisdiction of the state court, nor waive his right of removal therefrom. State Improvement-Development Co. v. Leininger, D.C., 226 F. 884. If defendant does nothing inconsistent with the continuation of his desire to remove he does not waive such right.

In the second state court action involving an additional defendant and additional issues, the defendants here are not seeking to remove, and what they did in that case is not important on the removal question in this case which was the first state court action. In the case at bar, the only parties joined as defendants prior to the timely filing of removal proceedings were the removing defendants husband and wife, and nothing other than the filing of removal papers was done by them in the state court in this case prior to plaintiffs' attempt to dismiss it, except after such filing to move for change of judge to hear the cause. Thereafter nothing was done by the state court at defendants' instance except to act upon the question of removal. They did nothing inconsistent with the continuation of their desire to remove, and there was no waiver of their right to do so.

The addition by plaintiffs of a third party defendant and plaintiffs' attempt to dismiss in the state court after the filing there of the removal proceedings are unavailing to defeat removal, because after such filing the state court was without power to proceed further in the cause. 28 U.S.C.A. § 72; Queensboro National Bank v. Kelly, D.C., 15 F.2d 395.

2. Citizenship of defendant Cecil Bolster.

Citizenship as between the states depends upon domicile as respects jurisdiction of the federal court. Prince v. New York Life Ins. Co., D.C., 24 F.Supp. 41.

"The domicile of a soldier or sailor in the military or naval service of his country generally remains unchanged, domicile being neither gained nor lost by being temporarily stationed in the line of duty at a particular place, even for a period of years. A new domicile may, however, be acquired if both the fact and the intent concur." 19 C.J. 418.

In Ex parte White, D.C., 228 F. 88, where an officer in the United States Army stationed at Fort Stark in New Hampshire, with a parental domicile in New York where he returned at the expiration of each term of enlistment and where after the death of his parents he had rooms...