Higson v. North River Insurance

Brown, J., after stating the case. It appears to be settled by both the Federal and State courts in numerous decisions based upon petitions to remove causes pending in State courts upon the ground of diverse citizenship, that the jurisdiction of a State court over a removable case terminates upon the timely filing therein of a proper petition and bond for its removal to a circuit of the United States. Natl. S. S. Co. v. Tugman, 106 U. S., 118; Stone v. State of South Carolina, 117 U. S., 430; Winslow v. Collins, 110 N. C., 121. It is equally well settled that the State court is not bound to surrender its jurisdiction unless the petition shows upon its [38] face á removable cause founded 'upon diverse citizenship, and unless such petition and an accompanying bond are filed in the State court within the time required by the acts of Congress of 1887-1888. R. R. v. Daughtry, 138 U. S., 298; Stone v. State, 117 U. S., 430; Howard v. R. R., 122 N. C., 944; Corp. Commission v. R. R., 151 N. C., 447; Moon on Rem., sec. 156. The statute is imperative that the application to remove must be made to the State court when the answer is due, and although the plaintiff does not then move for judgment by default it cannot be held that he thereby extends the time for removal. R. R. v. Daughtry, supra; Moon, sec. 156. Mr. Moon says: “A plaintiff may even stipulate that defendant shall have further time to answer without plaintiff thereby consenting that a petition for removal may be filed after the time limited therefor has expired.” Again the same author says: “The better reason, if not the weight of authority, sustains the theory that the State court in which a suit is pending cannot by order extending the time for the defendant to answer, or otherwise, enlarge the time within which a petition for removal may be filed.” In support of the text the author cites a great array of decided cases from the Federal courts, p. 446. Referring to this construction of the act, Judge Sanborn says: “It secures uniformity in the practice, prevents delays and I think is in accord with the evident intention of Congress. It was not within any time that a defendant might procure to be given him. by the court or his opponent, but within the time fixed by the statute, that Congress intended the petition should be filed.” Gold Mining Co. v. Hunter, 60 Fed., 305; Howard v. R. R., 122 N. C., 944, and cases cited. The fact that the courthouse of Pitt County was burned on 24 February, 1910, yihen the original summons and complaint in this cause were destroyed, cannot help the defendant. The complaint was filed 9 December, 1909. Civil terms of the Superior Court convened on 13 December, 1909, and 24 January, 1910. At neither of those terms did the defendant offer to file the petition and bond for removal, but waited until long after the time for answering had expired. It is true the defendant filed with the clerk of the Superior [39] Court of Pitt County on 24 January, 1910, a copy of a petition and bond for removal of tbis cause, but it was a copy of a petition addressed to the judge of the United States Circuit Court for the Eastern District of North Carolina and filed in that court praying the Federal judge to order a removal of this cause to that court. This copy was attached to a copy of an order of said judge directing the clerk of the Circuit Court to cause a copy of such petition and his order to be forwarded to the Superior Court of Pitt County to the end that said record' may be certified to the Circuit Court of the United States. It was not an original petition for removal addressed, as it should be, to the judge of the Superior Court of Pitt County (as the petition filed 23 April was addressed), but only a copy of a proceeding commenced originally in the Circuit Court of the United States and delivered to the clerk of the Superior Court of Pitt County. Nevertheless, treating it as an original petition for the sake of argument, it was not filed- within the time required by law nor presented to the Superior Court in term. The time for answering according to our statute expired with the term convening 13 December, 1909, and a filing with the clerk of a petition and bond for removal is not a presentation to the judge in term as is required. Ry. Co. v. Roberts, 141 U. S., 690; Howard v. R. R., supra; Shedd v. Fuller, 36 Fed., 609; Roberts v. Ry. Co., 45 Fed., 433. It is further contended that the order of the district judge had the effect to remove the cause into the Circuit Court of the United States and to oust the jurisdiction of the State court. We cannot concede this, and with entire respect for the learned judge, must hold that his order cannot have the effect to terminate the jurisdiction of the State court. If the removal proceeding were founded in the local prejudice act of Congress we should willingly concede that his order lawfully transferred the cause to the Circuit Court. But where the ground of removal is solely that of diverse citizenship, as we understand the law, the Circuit Court has no authority to order a transfer of the cause, especially when at [40] tbe time no petition and bond bas been presented to tbe State court, as was tbe case bere. Tbe right of removal for diverse citizenship is purely statutory, and before tbe jurisdiction of tbe State court can be disturbed it must appear affirmatively that a proper petition and bond bas been in due time presented to tbe State court, when, as said by Chief Justice Waite, in Stone v. South Carolina, 117 U. S., 430: “Tbe State court is at liberty to determine for itself whether on tbe face of tbe record a removal bad been effected.” Tbe learned Chief Justice then proceeds to say: “If it decides against removal and proceeds with tbe cause, notwithstanding the petition, its ruling on that question will be reviewable bere after final judgment under sec. 709 of tbe Revised Statutes (citing several eases). If tbe State court proceeds after a petition for removal it does so at tbe risk of having its final judgment reversed, if tbe record on its face shows that when tbe petition was filed that court ought to have given up its jurisdiction.” Tbe act of Congress does not confer upon tbe lower Federal courts tbe power to order removal of causes on account of diverse citizenship, as it does in tbe local prejudice act, but tbe removal proceeding must commence in tbe State court by filing tbe petition and bond there. At tbe time Judge Connor’s order was made, 10 January, 1910, no petition or bond bad ever been filed in tbe Superior Court of Pitt County, either presented to tbe judge or filed with tbe clerk, and that court bad not been asked to surrender its jurisdiction. We fail to find any authority, State or Federal, which sustains tbe action of tbe Circuit Court under such circumstances, and its order cannot have tbe effect to oust tbe jurisdiction of tbe Superior Court of Pitt County. “A State court is not ousted of its jurisdiction of a case by unauthorized proceedings taken for removal of tbe same ease to a Federal Court.” Johnson v. Wells Fargo Co., 91 Fed. Rep., 1; Tevis v. Pallentine Insurance Co., 149 Fed. Rep., 560. Tt is contended that tbe plaintiff’s counsel appeared in tbe [41] Circuit Court and moved to remand to tbe State court, and tbat sueb action is a recognition of tbe Circuit Court’s jurisdiction and power to make tbe original order. We are unable to see bow any action of plaintiff’s counsel can confer on a court a jurisdiction not conferred by law, but we would regard a motion to remand as ratber in tbe nature of a challenge to tbe jurisdiction of tbe Circuit Court to make tbe order of removal rather than submission to or recognition of it. Tbe motion was doubtless made to prevent an unseemly conflict between the State and Federal courts. Had tbe defendant pursued the usual and orderly procedure, tbe petition and bond would have been presented to tbe Superior Court in term, and if tbe judge' determined tbat on tbe face of tbe record a removal bad not been effected, tbe defendant could have appealed to this court, and if necessary had its judgment reviewed by tbe Supreme Court of tbe United States, and thus preserved its right to answer until tbe right of removal bad been finally adjudicated. On the contrary, the defendant chose to commence its removal proceedings originally in tbe Circuit Court and declined to file its answer to tbe complaint in tbe State court. There was nothing left for the State court to do but grant tbe plaintiff’s motion for judgment by default and inquiry. Tbe point is made tbat a judgment by default cannot be lawfully rendered in tbe absence of a summons substituted in place of tbe original served on defendant 14 September, 1909, and destroyed by fire. This is not necessary, as tbe defendant admits, when it filed its petition for removal on 28 April, tbat it bad been made a party defendant to this action. This is not only admitted by tbe act of filing itself, but it is expressly stated in tbe petition tbat tbe summons has been duly served on defendant. Nevertheless tbe substituted summons has been filed in tbe record by leave of this Court since tbe argument. The cause is remanded to the Superior Court of Pitt County with instructions to execute tbe inquiry, and otherwise proceed as tbe law directs. Affirmed.