198 F. 305 | D. Vt. | 1912
This is an action on the case for breach of warranty claiming damages to the amount of $5,000. One plaintiff is a citizen of Vermont, the other of Connecticut, and the defendant is a citizen of Massachusetts. The suit was brought in the Rutland county court of the state of Vermont and removed to this court on the petition of the defendant. The plaintiff moved that the case be remanded to the state court. On hearing it was claimed by the plaintiff:
(1) That no written notice of the petition and bond for removal was given before the filing of said petition and bond by the defendant
(2) That the bond is not in compliance with the provisions of the Judicial Code in that its proviso is that a certified copy of record shall be filed-in the federal court on or before the first day of the
(3) That the petition for removal contains no allegation that the defendant has a just defense and intends to make it.
(4) That a certified copy of record was not filed by the defendant within 30 days.
I. Written Notice.
II. Defective Bond.
Justice Bradley in Ayers v. Watson, 113 U. S. on pages 598 and 599, 5 Sup. Ct.- 641, 643, 28 L. Ed. 1093, briefly discusses what are formal and what are jurisdictional questions in matters of removal in these words:
“We see no reason, for example, why the other party may not waive the required bond, or any informalities in it, or informalities in the petition, provided it states the jurisdictional facts; and, if these are not properly stated, there is no good reason why an amendment should not be allowed, so that they may be properly stated. So, as it seems to us, there is no good reason why the other party may not also waive the objection as to the time in which the application for removal is made. It does not belong to the essence of the thing; it is not, in its nature, a jurisdictional matter, but a mere rule of limitation. In some of the older cases the word ‘jurisdiction’ is often used somewhat loosely, and no doubt cases may be found in which this matter of time is spoken of as affecting the jurisdiction of the court. We do not so regard it.”
Rose’s Code of Federal Procedure, vol. 2, § 1138, a recent and excellent authority, states this:
“By comity at least, the state court, or the judge in vacation, should be given opportunity to pass upon the petition and bond. Its acceptance and order of removal thereon relate back to the filing of petition and bond. Moreover, there are advantages in formally presenting the petition and bond and obtaining their acceptance and an order of removal. Defects may be pointed out which the party can remedy by amendments; and the fact that the state court has formally accepted the petition and bond, places the removing party in a better position to enjoin the state court’s proceedings, or to obtain amendment in case defects are made the basis of objection in the Circuit Court." Guarantee Co. v. Hanway, 104 Fed. 369, 44 C. C. A. 312.
See, also, cases cited below under point IV.
III. Allegation of Defense.
IV. Filing of Record'.
••The sail! co’jy being entered within said thirty days, as aforesaid, in said District Court of the united States, the parties so removing the said cause tilia 11 within thirty days thereafter jilead,” etc.
The words above quoted, “'as aforesaid,” refer to the provision as to the bond, viz.:
•‘A bond, with good and sufficient surety, for ills or their entering in such district court, within thirty days from the date of filing said petition, a certified copy of the record.”
The Judicial Code was approved March 3, 1931, to take effect January 1, 1912. Former statutes which provided for the filing of the copy of record on or before the first day of the next term, as above stated, have been construed rigidly by some judges and liberally by others. The trend of authorities is that the provisions of law relating to the filing of the copy of record are not mandatory, but directory, and that the court should exercise a discretion in the matter, the line to he drawn upon good faith on the part of the moving party; and if a slip is made in a step in the process of removal, the party should not thereby necessarily lose a constitutional right. It had been held, before the enactment of the Judicial Code, that bonds might be amended and the time for filing papers and pleadings extended in the discretion of the court. If Congress had intended to deprive the court of a discretionary power in these directory steps, upon technical objection being made, it would have used far different language from that made use of in the Judicial Code. I quote again:
•■The said copy lieing entered within said thirty days.”
Not the said copy shall he entered within 30 days as aforesaid, nor that the said copy not being entered within 30 clays the court shall, on motion, remand. On the contrary, it simply provides that the copy being entered in 30 days, the pleadings shall follow within the next 30 days. Is there any question but what, if the copy of record was entered in 40 days, the court could direct the pleadings to be filed within 20 days, especially when there is a general appearance for all the parties in the case? I see nothing in the Judicial Code indicating that the directory steps of the old statute are intended by the Code to become mandatory. I do not wish to be understood that it is not the duty of the court to heed the directory steps pointed out in the statute, but that for good cause .shown the court has a discretionary power in the matter.
In this case it appears that the certified copy of record was filed in good faith. It appeared on hearing that counsel for the defendant was following the provisions of the old statute, and that his attention had not been called to the changes made in the Judicial Code. The petition to remand was filed March 21st, less than three months after the changes provided by the Judicial Code took effect. It further appeared on hearing that no delay has been caused by the failure to file the transcript within the 30 days. Under this state of facts, I think it an injustice to hold that a nonresident citizen shall be de
'The jurisdictional questions that arise on removal proceedings are: (1) Matters relating to the Constitution and laws of the United States, or treaties with foreign states or governments. (2) Diverse citizenship. (3) The amount involved.'
The time .for filing a copy of record does not affect any of these questions, so I hold that the question raised under point 4 is within the discretion of the court, and, under the facts in this case, I exercise that discretion in favor of the defendant.
In Guaranty Co. of North Dakota v. Hanway, 104 Fed. 369, at page 374, 44 C. C. A. 312, at page 318, Judge Sanborn, speaking for the Court of Appeals in the Eighth Circuit, uses this language:
“Tlie time and tlie manner. of tlie presentation of tlie pleadings and the petition relate to the form and method of the proceeding and not to the essentials of the right of reinoval.”
The motion of the plaintiff to remand is denied.