171 Iowa 255 | Iowa | 1915
In Mann v. Howe, 9 Iowa 546, we hold that an answer which merely denies the amount of defendant’s indebtedness as claimed by plaintiff, without denying his cause of action, does not entitle to a trial, but leaves the one thus answering substantially in default. Since making mere denial that there was an indebtedness in the sum of $6,000 would-be of no avail, and would still leave the maker precisely as though he had made none, it must follow that no such denial is necessary. It cannot be possible that an answer is required which, in law,
In Yates v. French, 25 Wis. 661, the exact point seems to be ruled. There, the complaint was amended by increasing the amount of damages claimed on the facts alleged in the original complaint, and it was held that the answer to the original complaint stands as the answer to the amended complaint, and that it was error to permit plaintiff to take judgment because no answer had been filed to the amended complaint. As said, the original answer here operated as a complete defense on paper to the petition as amended. Therefore, there is no requirement that that which was already pleaded should be repleaded, and by rule time. While the statute does require amendments to petition, generally, to be pleaded to within a time fixed, this has no application to eases wherein no pleading is required. Wherefore, we are constrained to hold that if this removal petition was filed too late, it is because of something other than the time rule adopted by the Federal statute. But as appellee rightly suggests by argument in the alternative, though this statute rule does not govern, there is, of course, a limitation upoh the time at which such petition may be effectively filed. Appellee urges that defendant had constructive notice of the steps that ended with the filing of said amendment, and that such notice is of controlling effect.
In the end, appellee apprehends that no matter what the briefs fail to -do, the real question is whether defendant was negligent. So much is conceded by his argument that “plaintiff cannot be held responsible for the negligence of defend
In essence, the position of appellee is that one may be
Not many, if any, of the cases speak to the precise question. In dealing with circumstances like those at bar, most of them stop with the statement of the general proposition that filing of the petition to remove is in time if that be done as soon as it becomes known that a removal suit exists. Powers v. Chesapeake & O. R. Co., 169 U. S. 92, 101; 2 Bates, Fed. Proc. Sec. 819; Boatmen’s Bank v. Fritzlen, 89 Pac. (Kan.) 915; Black’s Dillon, Removal, Sec. 155; Enders v. Lake Erie & W. R. Co., 101 Fed. 202. They hold that applicant must move promptly after he is advised that there is occasion to move. Yarde v. Baltimore & O. R. Co., 57 Fed. 913, 915. He must exercise reasonable promptness. Enders’ Case, 101 Fed. 202. All these leave open the application of their rule. To use the words of Enders’ Case, “What is the degree of promptness that must be exercised?” Speaking concretely, is defendant negligent merely because he does not file petition to remove for thirteen days after he has constructive notice that he has the right to remove, though he files as soon as he has actual notice of such right ?
In Jameson v. Rixey, 26 S. E. (Va.) 862, right column, in which, as will presently appear, there was unquestioned constructive notice, it is said to be elementary doctrine that laches cannot be imputed to one who is ignorant of his rights. The rule, upon which much stress is laid — that a party properly brought into court is chargeable with notice of all subsequent steps taken in the case down to and including the judgment, although he does not in fact appear, and has no actual notice thereof — is a general rule. 29 Cye. p. 1116 (B). It
To a certainty, the rule that a suitor is charged with constructive notice of the steps taken in his suit is not better established than that rule which charges all men with having knowledge of the law. Yet a plaintiff has been allowed to withdraw a pleading filed by him in Federal court, to which the suit had been removed, and to file motion to remand, where it was made to appear that he had pleaded, and failed to move for remand, because he was ignorant of a certain construction of the removal statute on the part of the Supreme Court. See Collins v. Stott, 76 Fed. (Conn.) 613, approved in Black’s Dillon on Removal, See. 154.
Fogarty v. Railway, 121 Fed. (Cal.) 941, is, in our opinion, substantially in point. There, the plaintiff notified defendant on February 7th that on that day he would move to set the case for trial. Plaintiff appeared and moved the dismissal of the action against one- Nelson, whom plaintiff had joined as a defendant with the defendant railway .company. On this 7th day of February, dismissal as against Nelson was granted by an order entered in the minutes; and thus a removable suit created. The defendant company was unrepresented on that occasion, “and, so far as the record shows, was at no time notified of .the dismissal of the action as against its co-defendant Nelson.” Thereafter, the defendant company presented petition and bond for removal. The time of this presentation does not appear in the record. Nor does it appear when this defendant first learned of the dismissal of the action as to Nelson. "While, as said, it does not appear just when the petition and bond were filed, it does appear that the motion to remove was granted on February 26th,
Y. The epigrammatic statement that if constructive knowledge “is not knowledge for a period of seventeen days it would not be knowledge for any period” has two edges. It may mean that one minute of constructive notice is as potent as many days of such notice, or that one may be negligent by waiting too long in getting actual knowledge of a record which imparts notice by construction. The first interpretation furnishes a strong argument against appellee. When no plea is necessary, the statute which requires plea to be made by, and therefore gives time to plead until, the morning after that is filed which is to be pleaded to, does not govern. Therefore, a single minute of constructive notice will initiate negligence, and there would result the unthinkable requirement that defendant must mount guard in the court room and clerk’s office during every moment they remain open, so that he may not sin away the right to remove by failing to act instantaneously upon the filing of an amendment which creates a removable suit.
The other interpretation to which the words of appellee are susceptible asserts rightly that one may be negligent by delaying action until he has actual knowledge of a record which makes action due. Our holding that mere constructive knowledge is not enough to establish negligence does not relieve the party who remains ignorant of the record because he fails to exercise the diligence required by ordinary care and prudence. One may be guilty of inexcusable neglect in proceeding on the erroneous theory that a judgment against him is based on a return of personal service, when the return shows substituted service, and there is no excuse for the failure to examine the return. Myrick v. Edmundson, 2 Minn. 259. It is held in Teall v. Slaven, 40 Fed. (Cal.) 774-780, that where a deed, alleged to be fraudulent, bears evidence of fraud upon its face, and has been of record for thirty years, it affords just as strong evidence of fraud to
Some time in August, plaintiff, apparently knowing all the injuries he had sustained, filed a demand for three thousand dollars, exactly, the highest amount that would avoid removal. We do not say that such was the purpose of fixing the 'ad damnum, but may properly say, as bearing upon the diligence of defendant, that the amount of damages sought to be recovered in tort eases is often limited so that there may not be a removal to the Federal court, and that defendant here might not unreasonably assume that the one thing plaintiff would never do would be to amend himself into a removable suit. We have held that, though a newspaper publication complies literally with the statute, yet, if publication be made in an obscure paper in the hope that the defendant will not see the notice, this amounts to a fraud, although the letter of the statute has been complied with. So, if this plaintiff, indulging in a literal compliance with the statute, deliberately filed this amendment without giving actual notice, in the belief that defendant had reason to think none such would be filed, and with intent to keep defendant from being advised of the filing until it was too late, this, too, within the analogy of the aforementioned method of notice by publication, would operate as a fraud, although the filing did, for some purposes, give constructive notice. We do not say that plaintiff was actuated by any such motive, but wish to make clear that defendant should not be held to be negligent because it took no precautions to guard against filing with such motive. It does not lie in the mouth of plaintiff to say that defendant was guilty of laches because it refused to suspect the possibility of plaintiff’s being guilty of fraudulent practices.
We are of opinion that, if the filing of plaintiff’s amendment did give constructive notice, it was not here the equiva