9 F.2d 894 | 2d Cir. | 1925
The defect on which the defendants rely was only one of venue, and as such might be waived. Panama R. R. v. Johnson, 264 U. S. 375, 44 S. Ct. 391, 68 L. Ed. 748. Hence, if the defendants, actually served, waived the defect by consent, or in any other way, the court, having substantive jurisdiction over the cause, might proceed. Section 278 of the Civil Practice Act of New York provides that, when the complaint shows a defect of jurisdiction curable by the defendant’s consent, it will be waived unless taken by motion, and rule 106 of the Supreme Court of that state provides that it must be taken by motion within 20 days. The plaintiff is right, therefore, in saying that on September 26, 1923, the cause being still in the state court, the defect was waived, unless the defendants’ time had been extended to notice the defect. The procedure of the state court governed while the cause was in that court.
However, the petition for removal alleged, as it must, that the time of the defendants to “answer or otherwise plead” had not expired. This language, taken from the Removal Act (section 29 of the Judicial Code [Comp. St. § 1011]), includes, we think, a motion made under rule 106 of the Supreme Court. Under section 277 of the Civil Practice Act, demurrers are abolished, and motions such as this are substituted in their place. Hence we regard the allegation of the petition for removal as equivalent to saying that the time had not expired within which the defendants might answer or move on the face of the complaint. This we conceive to be an answer to the plaintiff’s position.
Besides the same result follows, because of the defendants’ delay after the cause came into the District Court for the Eastern District of New York. The only evidence we have in the record is that on October 25, 1923, the defendants’ time to make the motion to dismiss had not expired, and the motion was not in fact made till April 30, 1924, more than six months later. The affidavit accompanying this motion alleged only that the time to “appear and answer” had not yet expired. Appearance was unnecessary, as the defendants had already appeared generally. The most they could claim was that they might rid themselves of this appearance, because it was entered without knowledge of the character of the action. The affidavit, unlike the petition for removal, did not allege that their time otherwise to plead had been extended. Perhaps that was the ease in fact, but we have only the record on which to go.
Therefore, as the case stands, it was too late on April 30, 1924, to move under rule 106, and under section 278 of the Civil Practice Act the defect had been waived. It is quite true that during this period the cause was in the federal, not the state, court. However, it was an action at law, and prima facie the state practice obtained. R. S. § 914 (Comp. St. § 1537). Under that section a federal court is, of course, never bound rigidly to conform to the state practice. On the contrary, we follow it only so far as in our judgment it promotes the expedition of causes and the interests of justice, as we view them. Shepard v. Adams, 168 U. S. 618, 18 S. Ct. 214, 42 L. Ed. 402; Boston & Me. R. v. Gokey, 210 U. S. 155, 28 S. Ct. 657, 52 L. Ed. 1002. Nevertheless this is a ease, we think, in which the state practice should control. There is no reason why a person actually served, and aware of a defect of venue, should bo allowed more than 20 days within which to object. The point is one formerly taken by special demurrer, which was dilatory in character and for the convenience of the defendant. It was always susceptible of waiver through inaetion. Hence we adopt the state practice and hold that the defect was waived.
Judgment reversed, and cause remanded.
