276 F. 36 | D. Or. | 1921
This cause is here by removal from the circuit court of the state of Oregon for Jackson county. The plaintiff has moved the court to remand the cause to the state court. The complaint was filed April 12, 1921, and on the same day the summons was delivered to the sheriff of Jackson county for service, and by him served within the county, upon the defendant personally, and in person.
On April 22, 1921, the defendant, appearing specially, moved in the state court to quash the service of summons, on the ground that he had been brought into the state from the state of Utah, by extradition proceedings, to answer in a criminal action instituted and then pending against him, by indictment charging him with aiding and abetting a cashier of a bank to injure and defraud the bank. This motion was brought on for hearing in due time, and, after consideration by the court, was on May 14th denied. On May 19th plaintiff moved the court for an order of default and judgment against defendant.
On the same day the defendant interposed a motion for reargument of the motion to quash. This latter motion was allowed, and while it was pending, namely, on May 19th, the defendant filed his petition for
It is first insisted that the defendant failed to file his petition for removal within the time allowed to plead or answer to the complaint in the state court, and therefore that the cause should be remanded. To this the defendant makes answer that no valid service of summons has ever been had upon him, and, the service being void, his time for pleading or answering to the complaint has not even begun to run.
The action is transitory in character, being for recovery upon two promissory notes, and for money had and received to defendant’s use and benefit, and, under the Oregon statute (sections 44 and 45, R. O. R.), may be instituted ’and service had upon the defendant in the county where he resides or may be found. An action is deemed to have been commenced against a defendant when the complaint is filed and the summons served upon him; and, if served within the county where commenced, he is required to answer or plead to the complaint within 10 days, or, if in any other county in the state, within 20 days. _ Sections 14 and 52, R. O. R. An attempt to commence an action is the equivalent' of commencement, when the complaint is filed and the summons delivered to the proper officer with intent that it shall be actually served. Section 15, R. O. R.
Waiving for the present the question whether or not the service of summons is void, we will inquire whether, within the federal removal statutes, the defendant was required, assuming it to be void, to answer or plead to the complaint filed herein. More than 10 days had expired between the time of the attempted service and the filing of the petition for removal.
This leaves but the one question for decision; that is, whether there was a valid service of the summons. That depends upon whether the defendant was privileged from sendee by reason of his having been brought into Jackson county from the state of Utah, by virtue of an extradition warrant, to answer in a criminal cause then pending against him in said county.
The principle thus ascertained and announced is not applicable here, because defendant cannot insist upon the ’right of asylum in Utah, as against his service in a civil cause. It is the privilege or immunity from such service, while in attendance upon court for answering in the criminal case, that he insists upon. There is no legislative declaration in Oregon, of which I am aware, that deprives the person of such immunity, if it exists, or in any way impinges upon such right. Nor has the state Supreme Court, by any judicial utterance to
• The rule rests upon the postulate that the service of such process would serve to intimidate and deter persons thus exempt from attendance upon the court, especially when compelled to come from another jurisdiction, or from places far distant from the place of trial, or beyond the reach of subpoena, and would result many times in a failure of justice. The rule is even buttressed upon a broader principle, namely, that it is a privilege of the court as affecting its dignity and authority, and is founded upon sound public policy. Hale v. Wharton, supra; Feister v. Hulick (D. C.) 228 Fed. 821.
Now, while conceding this principle of law, it is urged that it is inapplicable where the party is in attendance upon the court by compulsion, as under an extradition warrant, and the service is in a civil action. The contention is sustained by a number of the state courts, but is denied as unsound in others of equal distinction. See Ex parte Frank Hendersen (1914) 27 N. D. 155, 145 N. W. 574, 51 L. R. A. (N. S.) 328, where many of the diverging authorities are noted.
The principle contended for has never been sustained, so far as I am now advised, in the federal courts. On the other hand, the general rule has been applied in some of the District Courts. United States v. Bridgman, 24 Fed. Cas. 1230, No. 14,645; Kaufman v. Garner (C. C.) 173 Fed. 550; Feister v. Hulick, supra.
The motion to remand will be denied, and the motion to quash the service of summons will be sustained, and the complaint dismissed.