McKeen v. Ives, 35 F. 801

McKeen v. Ives

35 F. 801 | U.S. Circuit Court for the District of Indiana | 1888

Woods, J.,

(after slating the facts as above.) I am of opinion that the application for removal was made in time and should have been granted. Under a statute identical with section 400, supra, of'the Revision of 1881, the supreme court of the state in 1879 held that a judgment by default could not be entered on the first day of the term of court to which the summons was returnable, (Mitchell v. McCorkle, 69 Ind. 184;) and unless that decision is for some reason inapplicable here, it, follows that the docketing of this cause “for issues” on March 5th was improper and unlawful. If authorized by any rule of the court, the rule was repugnant to this statute, as interpreted by the highest tribunal of the state. But, say counsel: “Section 516, Rev. St. 1881, changes the law from what it *803was when Mitchell v. McCorkle was decided. The plaintiff can now fix the exact day of the term at which defendants must appear and answer. That was done in this case, and March 5th was stated in the summons.” As indicated in the statement of the case, the record does not show that the plaintiff’ fixed the day for the appearance of the defendants in the manner prescribed by the statute referred to, and, as the matter is jurisdictional, I think it must be held that the summons in this case was issued under the general statute. Such summons, in the customary form, Í believe, requires the defendant to appear on the first day of term. This summons named a particular day, which was in fact the first day of the term, as all concerned were bound to know, and therefore must be deemed to have the same significance asfff worded in the usual way. But, if it l)e conceded that this summons was issued under the proviso of section 516, in pursuance of an order indorsed upon the complaint, the decision in respect to the right of removal must be the same. While it is true that the provisions of section 400 had an existence before 1881, and the proviso of section 516 did not, yet both sections were embraced in the Civil Code of 1881, (Acts 1881, pp. 258, 308, §§ 104, 367,) and with the other provisions of that Code went into effect simultaneously on September 19, 1881. They must therefore be construed as parts of the same act, and neither as in any sense repealing the other. This involves no difficulty in respect to the question presented; for, conceding that under section 516 a complainant has the right to fix the first day of the term as the day “on which the defendant shall appear,” it is still consistently true, under section 400, that causes shall be called “for issues” on and after the second day of the term, and a call on the first day is unauthorized. The docketing of the cause for the 5th of March on the docket of the superior court was therefore unlawful, in so far, at least, as that, under rule 2, svpra, of the court, such docketing could operate as a rule against the defendants to answer. And it is not claimed that in any other way the petitioner came under rule to answer or plead. Haying nothing in respect to the nature and effect of the supplemental complaint filed March 5th, a default for want of an appearance might have been entered against the defendants on any day after March 5th, (and possil)!y on that day;) but this was not done, and on the 28th the petitioner appeared, and at once moved for a transfer of the cause to this court. The right to make the motion is not restricted by the act of March 3, 1887, to the time of appearance, or to the time when a default for want of appearance might be taken, hut by the ter,ms of the act the petition may be presented “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 suit is brought, to answer or plead to the declaration or complaint of the plaintiff.”

The objection that Ives did not join in the motion seems untenable, for the reason that the supplemental complaint, as well as the petition for removal, shows that Ives has no substantia] interest in the controversy. Aside from what has been said, I think the so-called “'supplemental complaint” goes far beyond the proper scope of a supplemental bill, and that it so far changed the nature of the action and character of relief *804prayed and proper to be granted, as to have required a new summons before judgment by default or decree pro confesso could have been entered. It is not deemed necessary, however, to pass upon this point. It would be tedious to go into details; it is enough to say that the original complaint made Ives the principal party defendant, and sought and warranted only incidental relief against the petitioner; while the supplemental bill, abandoning all questions between the plaintiff and Ives, eliminates the latter from the case by averring that he acted for his co-defendant, the railroad company, only, and seeks against that company an accounting and other relief not prayed in the original bill against either defendant, and which under that bill could not have been obtained against the petitioner. The objection of illegibility has been removed by the filing of a substituted transcript.

In any view of the case, as it seems to me, the petition for removal ought to have been sustained, and the motion made here is therefore overruled.