192 F. 654 | U.S. Circuit Court for the District of Eastern Tennessee | 1910
The Act of Congress provides that a defendant may file his petition for removal in the 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
The material provisions of the Tennessee code are contained in sections 4238 to 4240 (Shannon, §§ 6076 to 6078). They are as follows :
Sec. 4238. “The declaration of the plaintiff shall be filed within the first three days of the term to which the writ is returnable, otherwise the suit may, upon motion of the defendant, be dismissed at plaintiff’s cost.”
Sec. 4239. “The defendant shall appear and demur or plead within the first two days after the time allotted for filing the declaration, otherwise the plaintiff may have judgment by default.”
Sec. 4240. “The plaintiff and defendant shall, within the- first two days after each subsequent step taken by the other in making up an issue, demur or plead thereto, on penalty of having the suit dismissed or judgment taken by default according as the failure is by the plaintiff or defendant.”
Construing these three sections together, I think it is clear that under section 4239 a defendant is not required to demur or plead to the plaintiffs declaration within the first five days of the term to which the writ is returnable unless the plaintiff has within that time filed his declaration, there being obviously nothing to which he could demur or plead, and that where the plaintiff’s declaration is not filed until a latter date, the defendant then has, under the statutes and in accordance with the well settled practice in Tennessee, two days in which to demur or plead before being subject to a judgment by default. Morrison’s Tennessee Pleading & Forms, 13.
While it is true that after the expiration of the first three days of the term, the defendant may, if he so elects move to dismiss the suit on account of the plaintiff’s failure to file the declaration in time, yet this is optional on his part, and if he does not elect so to do, there is clearly no obligation on his part to demur or plead until after the declaration is filed; since he could not then plead or demur to the declaration even if he so desired. Under these code sections until the suit is dismissed for failure to file declaration, or at least until a motion to .that .effect is made, the plaintiff may file his declaration at any time. Caruthers, Hist. Lawsuit (3rd Ed. s. 79, p. 162); Lockhardt v. Memphis & L. R. R. Co. (C. C. W. D. Tenn.) 38 Fed. 274, 277. And where the plaintiff’s declaration is not filed in time, as the defendant cannot put in his defense thereto at an earlier time, there being no declaration on file to be answered, it becomes a matter of right on the part of the defendant to plead to the declaration when filed, without obtaining leave of the court. Turner v. Carter, 1 Head (Tenn.) 520, 522. “But when a party is entitled to an extension of time under the State statutes or rules of the Court, as of right, he is not. required by statute or rule, to plead or answer before that time, and hence it enlarges his time to file a removal petition.” 2 Rose’s'Code Fed. Proc. p. 1052.
This being so I think it immaterial in the present case whether, or not the f^ct that the State'Court adjourned on the first day of the term prevented the, defendant Railway Company under the practice or the rules of the Court from moving to dismiss the suit for failure to file ■ the-declaration within the first three days-of the term, since
I find nothing contrary to this view in the case of Kansas City, F. S. & M. R. R. Co. v. Daughtry, 138 U. S. 298, 11 Sup. Ct. 306, 34 L. Ed. 963, which involved the very different proposition that where the plaintiff had filed his declaration in time but the defendant was in default in failing to plead within two days, the mere failure of the plaintiff to take, the judgment by default against the defendant did not extend the defendant’s time for filing the petition for removal. This conclusion was based upon the idea that as the defendant did not plead at the time when the plea was required from it under the State Statute, its petition for removal came too late, not having been filed within the time when under the State Statute it was required to plead to the declaration. The result of this decision seems to be that the time when the defense is due and the defendant becomes in default furnishes the test as to the time in which the defendant may file his petition for removal. Wilcox & Gibbs Guano Co. v. Insurance Co. (C. C.) 60 Fed. 929, 931. In fact this decision emphasizes by necessary implication the idea that a defendant has the right to remove so long as the time has not expired within which his defense is due, and that so long as he is not in default under the State Statutes, he may file his petition.for removal.
It is true that a different result was reached by Judge Clark in the manuscript opinion in the case of John M. Scruggs v. Alabama G. S. R. Co., but as it appears that the op inion in that case was resled upon a different ground, dealing principally with the question as to whether or not the defendant was required to file a petition for removal on the ground of a separable controversy before the separable controversy had been disclosed in tlie declaration, and that Judge Clark’s attention was apparently not directed to the precise question now under consideration, no mention being made in his opinion of the provisions of the Tennessee statutes hereinbefore cited, or construction placed thereon, I cannot regard this opinion as controlling upon the precise question here presented and considered.
While it is well settled that in determining, whether or not there is a separable controversy, “in the absence of a showing of fraudulent joinder,” the cause of action must be taken as that which the plaintiff, alleges it to be in his pleadifigs (200 U. S. 206, 26 Sup. Ct. 161, 50 L. Ed. 441, and cases cited), it is equally well settled tha,t the aver-ments of the declaration are not conclusive where the nonresident de^-fendant, as a ground for removal, attacks the bona fide character of the averments of the declaration in reference to a local defendant and avers that such local defendant was joined as a party defendant in bad faith for the sole purpose of preventing a removal to this court, and that if upon inquiry by the Federal Court it is established to the satisfaction of the Court that the averments in the declaration in reference to the local defendant were not made in good faith, but such defendant was joined for the sole purpose of defeating the removal to the Federal Court, the case will be held to be removable as though such local defendant had not been joined. Louisville Ry. Co. v. Wangelin, 132 U. S. 599, 10 Sup. Ct. 203, 33 L. Ed. 474; Chesapeake Ry. Co. v. Dixon, 179 U. S. 131, 138, 21 Sup. Ct. 67, 45 L. Ed. 121; Alabama Ry. Co. v. Thompson, 200 U. S. 206, 208, 26 Sup. Ct. 161, 50 L. Ed. 441; Wecker v. Enameling Company, 204 U. S. 176, 27 Sup. Ct. 184, 51 L. Ed. 430; Dow v. Bradstreet Co. (C. C.) 46 Fed. 824, 828; Warax v. Ry. Co. (C. C.) 72 Fed. 637, 641; Hukill v. Railway Co. (C. C.) 72 Fed. 745, 754; Landers v. Felton (C. C.) 73 Fed. 311; Durkee v. Ry. Co. (C. C.) 81 Fed. 1.
The petition and answer thus raise an issue of fact which, it is well settled, is triable in this Court. Kansas City, F. S. & M. R. R. Co. v. Daughtry, supra; Wecker v. Enameling Co., 204 U. S. 176, 27 Sup. Ct. 184, 51 L. Ed. 430. And while properly speaking, such answer should have been filed in this Court, yet, without objection it may be so treated, or if objected to on that ground, it may be now refiled in this Court.