Stevens Lumber Co. v. Arnold

Walker, J., after stating the cáse: If we give to the facts of this case their proper meaning, and consider carefully the documentary proof which is made a part of the case, the legal merits will the more easily be seen. It appears that the- summons had been issued, and served, returnable 20 October, 1919, and that defendant’s counsel wrote to the clerk of Lee County for “an extra two weeks, from Monday, 20th, to file answer.” This is the literal form of the request for time. There was no general request for an extension of the time, but a special request, in order to be on the safe side, that he have two weeks from the return day of the summons to file the answer, which would be until 3 November, 1919. The clerk, instead of complying with this specific request, extended the time to 20 November, 1919, or about seventeen days beyond the time requested. The letter shows that this was the request, as the attorney states further on that, under the new law (acts of 1919, ch. 304), he had only one week from the filing of the complaint on the 20th, and that he needed two weeks from that date, or until November 3d, and, in addition, plaintiff’s counsel only agreed to “such extension of time as was desired,” which was two weeks from 20 October, or, if two from the time of actually filing the complaint, which was 23 October, it would be not later *275 tban 7 November. Tbe defendants bad, under tbe act of 1919, cb. 304, sec. 3, 20 days after tbe return day of tbe summons, or 20 days after tbe filing of tbe complaint, if plaintiff’s time for filing tbe same was extended. It cannot be tbat, where tbe clerk and defendant’s counsel resided in different places, widely separated, it was competent for tbe clerk to extend tbe time beyond tbe date requested by tbe former, without bis consent, or even bis knowledge, and beyond tbe time assented to by tbe plaintiff’s counsel, because be granted only tbe time requested, or “desired,” to use bis language. Tbe clerk, it'may be conceded, has tbe power, under tbe new act, to extend tbe time for filing an answer, but be cannot do so of bis own motion and contrary to a request for a stated time, so as to deprive tbe defendant of bis right of removal, at least without bis consent. Tbe defendant’s counsel, not having read tbe last statute in regard to procedure and pleadings, was not entirely sure as to tbe time for answering allowed him. He did not need any order for an extension of time to file bis answer, as tbe two weeks requested by him were well within tbe statutory time, as tbe regular time would have expired about 4 November. Tbe defendant did not need any extension, nor did be ask for one, in a technical sense, as be already bad tbe time, which is mentioned in bis letter, under tbe statute. Compliance with bis request would be giving him only tbe time which be already, bad by law. Tbe motion for tbe removal was filed on 29 October, in tbe office of tbe clerk, and before tbe clerk, tbe complaint having been filed on tbe 23d, tbe defendant was therefore within bis legal right when be filed bis motion, regardless of any action of tbe clerk as to tbe time. Tbe statute says tbat be shall file bis motion before tbe time for answering expires, and this be did. After filing bis motion with tbe clerk, be could then answer, and tbe case would then be transferred to tbe Superior Court, as was done, for a bearing of tbe motion before tbe court at term. No other procedure can be adopted since tbe act of 1919, as there is no provision in tbat statute giving tbe clerk power or jurisdiction to pass upon a motion, and this must necessarily be done as before, and, even as now, provided in tbe law, by tbe judge at term, otherwise by filing bis answer, so tbat tbe issue may be raised and tbe case transferred, without first making bis motion to remove, tbe defendant, by tbe very terms of tbe statute, would lose bis right to remove, as bis motion for that purpose, is due before tbe answer is actually filed, or before tbe time for filing it has expired. As to tbe order of extension made by tbe clerk, we are of tbe opinion tbat tbe judge should either have disregarded it altogether, as being a work of supererogation on tbe part of tbe defendants and tbe clerk — a *276 mere nullity, or be should, have, himself, directed the order to be amended so as to comply with the request made by the defendant’s counsel in letter. We do not understand why the time was extended to 20 November, 1919, unless by misunderstanding, or mistake, of the clerk, as to the motion and exact scope of the request, but his action, under the circumstances, is not to be taken as binding upon the defendants, nor imputed to them as a waiver of their right. Such a view of it would be entirely inadmissible, and would be very unjust to them. They have been diligent in filing their motion for a removal, and, in the further prosecution of the case, they have acted promptly and within the time allotted to them by law, and there is no valid, or sufficient, reason for any loss of their right to change the venue of this action. It is said in the case not to have been controverted during the argument, that the defendants, upon the request of their attorneys, had been granted an extension of time until 20 November, 1919, to file their answer, and further, that the order of 20 October, 1919, extending the time to file the answer, is the only one made on the application of the defendant’s counsel. This may all be true, first, because the extension to 20 November was granted “on the application of defendant’s counsel,” but not jn response thereto, as it did not ask for such an extension, and in that sense only was the extension granted on his application, and, second, for the same reason was the order of extension the only one made, on his application. Besides, a party is not bound to controvert everything said on an argument on pain of losing his rights. The fact remains, and clearly and palpably appears, that the clerk’s order was made on a misapprehension of the true nature of the request as contained in the letter. The conclusion follows, and as we think logically, that the ruling of the court denying the removal was based upon something done erroneously by the clerk, and cannot be supported by anything authorized, or done, by the defendants which waives or forfeits their right to remove the case. Any other decision, it seems to us, would violate the spirit, if not the letter, of the statute. The case, therefore, does not fall within those cited by the plaintiff, where an unequivocal request for an extension of time was made, and granted, and where, too, in most, if not all, of the cases the request for removal was filed after the statutory period had elapsed. Here it was filed within the time, and only a few days after 20 October, 1919, when the complaint was filed, that is, on 29 October, 1919. We repeat that the judge should have corrected the record by having the order amended, so as to express what was actually done, and setting right a mere clerical error. The words of Justice Davis, in Shaver v. Huntley, 107 N. C., 623, at 628, are peculiarly appropriate p here, as he was treating of a similar question. He said: “If this be not so, the defendants have lost a right *277 without any fault, or neglect, of their own, and which they could not have prevented by any reasonable diligence or foresight.” These defendants could not suppose that the clerk, of his own motion, would give an order for which they had not asked. Their counsel recognized the mistake as soon as it came to their knowledge. The right of removal, or change of place of trial, under our statute, is said to be of the same nature as that under the Federal law,- or analogous to it, and that law is truly and accurately construed in Bank v. Keator, 52 Fed. Rep., 897, as follows: “A petition for removal filed after the statutory period has expired comes too late, even though filed within the time allowed for answering by order of the court, where such order is based on the stipulations of the parties.” See, also, Wilcox v. Ins. Co., 72 Fed. Rep., 803, and Fox v. R. R., 80 Fed. Rep., 945; Williams v. Tel. Co., 116 N. C., 558; Howard v. R. R., 122 N. C., 944, where many similar cases are cited; Riley v. Pelletier, 134 N. C., 318; Garrett v. Bear, 144 N. C., 25; McArthur v. Griffith, 147 N. C., 545. In all these cases, where the right of removal has been denied because the motion came too late, that is, after the time for answering, under the law, and not under any special extension, had expired, we believe, so far as we have been able to discover, that the motion for the removal was made during the extended time, after statutory time had run its course, while here there was no extension requested by the defendants beyond the statutory limit, and the motion was actually made in time, that is, before the answer had been filed or the time for answering had elapsed. .The defendant has acted promptly within the meaning of'the statute, and has done nothing to prejudice his right to remove. Reversed.