38 F. 274 | U.S. Circuit Court for the District of Western Tennessee | 1889
The declaration in this case was filed March 21,1888, within the first three days of the term to which the writ was returnable, and strictly in accordance with law and the practice of the court. Thomp. & S. Code Tenn. 4238; Mill & V. Code Tenn. 5010. The defendants, by the next succeeding section of the Code, had “the first two days after the time allotted for filing the declaration” to appear and demur or plead; “otherwise the plaintiff may have judgment by default,” says the same section. Thomp. & S. Code Tenn. 4239; Mill & V. Code Tenn. 5011. But they did not do this, nor did the plaintiff take any judgment by default, nor was any step taken by either party until April 25, 1888, when the defendants — still during the appearance term — filed a plea in abatement to the writ, and asked that it be quashed. On the 28th of April the plaintiff filed an affidavit, and on his motion the sheriff was allowed to amend his return so as to show that he had served the summons upon one Jones, not only as the agent of the defendant company, but also as the agent of other defendants named in the writ as trustees of that company. In this condition of the record the March or appearance term of the court adjourned on the 18th day of May, 1888, and during the next succeeding May term, on the 1st day of June, 1888, the trustees so named filed their plea in abatement, whereupon, on June 5th, the plaintiff filed his demurrer to the last-mentioned plea, and a replication to the first-mentioned plea in abatement, denying its averments. On the 2d of July, 1888, the court sustained the plaintiff’s said demurrer, and by the order of the court the “said defendants are allowed to plead further to plaintiff’s declaration.” But on the 7th day of July, 1888, — still during the May term, — the removing defendants filed their petition and bond for removal to this court, and on the 11th day pf July an order was entered in that court that the case be removed. This motion is now made to remand solely on the ground that the petition for removal was not filed within the time required by the act of congress of March 3, 1887.
By the third section of that act the time designated for filing the petition to remove is thus defined:
“He may 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 or complaint of the plaintiff, for removal,” etc. (24 St. 554;) Act Aug. 13, 1888, § 3, (25 St. 435.)
It seemed to me at fust that it was entirely clear that this petition was not in time, and that it should have been filed within or before the two days allowed to the defendants to plead by the section of the Tennessee
The local rules of practice in the court from which this case comes, cited by counsel in 'his brief for defendants, which fix the motion days upon which defaults may be taken, are based on this settled practice, which on the whole may be said to be contrived so that he who would take advantage of a default in the time of filing a pleading shall do it only at certain fixed times, when the one in default may have an opportunity to resist the application for cause, if he have not in the mean time filed his pleading. Moreover, these sections of the Code do not require pleas “to the declaration or complaint” to be filed within the time limited by them, only, or at all, if the defendant has any defense by motion to dismiss, by demurrer, by plea in abatement, or other dilatory plea like these. It is only in the absence of such dilatory or preliminary defenses that these sections can be said to fix a time within which a plea “to the declaration or complaint” is due, and consequently to fix a time by which the right of removal is limited under this act of congress. If the dilatory or preliminary pleas be filed, the Tennessee Code is obeyed, and the “requirement” of that statute is answered; but the kind of pleas mentioned in the act of congress, and the time for filing them, remain subject to the future exigencies or contingencies arising in the progress of the case. Under such a practice, which has been detailed with fullness to exhibit the force of what-is about to be said, it is quite difficult to determine just when the time for removing a case must expire under this new act of congress, even when considered in its simplest form, without relation to the complications appearing in this case, arising out of the character of the pleas, as pleas in abatement to the writ, and as not being in any strict sense pleas to the declaration; for it will be observed that the act of congress does not limit the time by any other character of pleading than one “to the declaration or complaint of the plaintiff” — whatever that may mean; whether in the broad sense it intends to describe any kind of pleading in the suit and to require the removal to be made substantially, as the act- of 1789 did, “at the time of entering his appearance in such state court,” (Act 1789, c. 20, § 12, 1 St. 79;)- or to describe only pleas in a technical sense, as contradistin-guished from demurrers and the like, which, -while going to the declaration, are not pleas; and as contradistinguished from pleas in abatement, which, while they are pleas, are only to the writ, and not to the declaration or complaint. I have been inclined to think that the authors of this act of congress meant to use the phrase “to answer or plead to the declaration or complaint of the plaintiff” in the broad sense just mentioned, and not the other, for it does not very obviously appear why the distinctions of the other and stricter sense mentioned should be observed in this matter; but the departure, from the act of 1789, which has been always acknowledged and characterized as a masterpiece of legislation, expressing with precision its exact meaning, is too plainly conspicuous to admit of that construction. If this new act intended to restore the
This disposes of the case, unless the filing of the pleas in abatement terminated the right of removal under this ruling. But it is plainly manifest that they did not. However it may be elsewhere, in Tennessee a plea in abatement is not a plea “to the declaration or complaint of the plaintiff,” — to use again the language of the act of congress. It goes to the writ only, and in this case challenged the truth of the return of the sheriff. If the decision be in favor of the plea, the writ, and of course, along with it, the declaration, abates; but, if the decision be against the plea, the judgment is always, as it was in this case, respondeat ouster, and the defendant is allowed further time to plead to the declaration, — generally a specified time named in the order of the court, though in this-case no time was fixed. The very object of the plea was to determine the fact whether the writ and its service required the defendants to plead to the declaration, and there can be no doubt under our practice that the defendants were not required to plead to this declaration until their plea in abatement was disposed of, and then, both by this particular order of the court, which failed to fix any limit of time for pleading, and by the usual practice, they had an indefinite time to plead the declaration, after the demurrer to the plea in abatement had been sustained. Caruth. Lawsuit, §§ 183, 186, 187; Morgan v. McCarty, 3 Humph. 147; Robb v. Parker, 4 Heisk. 58, 70; Battelle v. Rolling Mill Co., 16 Lea, 355, 365, 368. If the order allowing the defendant to plead over had fixed a day certain within which to plead, or if the rules of practice in such a case should fix a day certain, that day’s ending would terminate the right of removal, unless the time were previously enlarged. But neither of these conditions existed, and the removal was in time. Motion overruled.