Cooley v. Lawrence — 12 N.Y. Super. Ct. 605

Majority

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James E. Cooley and John Keese, respondents, v. William Beach Lawrence and William B. Lawrence, Jr., appellants.

Headnote

In removing a cause from the state courts to the Circuit Court of the United States, the defendant shall, at the time of entering his appearance in such state court, file a petition for the removal of the cause for trial into the next Circuit Court to be held in the district where the suit is pending, and offer good and sufficient Surety for his entering in such court, on the first day of its session, copies of said process against him; and also for his there appearing and entering special bail in the cause, if special bail was originally requisite therein.

Held, that the entry of an appearance in a state court must be interpreted by the course and practice of that court; and that what is held in such court to be a submission to its authority in the cause, whether coerced or voluntary, must be deemed an appearance. And further, when such submission has once been made, it cannot be retracted.

Held, also, that the defendants, by appearing, in this action, by counsel, and op posing a motion for an injunction, and reading affidavits in opposition to such motion, and filing the same, with the names of their attorneys in this action endorsed thereon; and by moving that all proceedings in this action be stayed, had submitted themselves to the jurisdiction of the court, and appeared in the action unconditionally.

(Before Oakley, Ch. J., Dubb, Boswobth, Campbell and Hoffman, J. J.)

October term, 1855.

This action comes before tbe court on an appeal by the defendants from an order made by Mr. Justice Duer, denying a motion; to remove it into the Circuit Court of the U. S. A., and to stay all proceedings in this court.

William Beach Lawrence, one of the defendants in this action,

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had granted a lease to the plaintiffs of certain premises in the city of Hew York, with covenants of renewal. He made the usual affidavit of the tenants’ holding over after the expiration of the term, and obtained from a justice a summons to show cause why possession of the premises should not be delivered to him, under the statute of this state.

While the proceedings before the justice were pending, the plaintiffs herein commenced their, action, and in their complaint set forth the covenants of renewal in the lease, and averred a fulfilment of all the covenants binding upon them, and stated a demand for a renewal of the lease according to its provisions. They asked judgment for a specific performance of such eovevants of renewal, and an injunction to restrain the defendants from further prosecuting their proceedings for obtaining possession in the justice’s court.

An order to show cause why an injunction should not issue, was granted by one of the justices of this court, with a temporary injunction to restrain the proceedings until such application could be heard. This order, with the summons and complaint, were personally served upon both defendants. They appeared upon the return-day, the 10th of May, 1855, by their counsel, to oppose the same; and presented and filed with this court an affidavit, entitled in the action, endorsed with the names of “ Platt, Gerard, and Buckley, defendants’ attorneys.” On this, and the arguments of counsel, the motion was resisted.

On the 16th of May, an order of this court was made, which recited the making of the order to show cause, and its contents, and concluded as follows:—“And the said parties having duly appeared, pursuant to the said order, to show cause—and the deféndants’ counsel having read the affidavits of the defendants, and the plaintiffs’ counsel having read affidavits on their part, and on hearing Mr. Cutler for the continuance of the injunction order, and Mr: Gerard in opposition thereto—it is ordered that the said injunction order be continued until the final determination of this action, and that the plaintiffs file an undertaking in the sum of five thousand dollars, to be executed by the plaintiff, Cooley, in addition to the undertaking in the sum of five thousand dollars heretofore made and filed by him in this action, and that the said bond be executed with sureties in the usual manner.”

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On the 24th of May, 1855, the defendants filed their petition (with the requisite bond) for the removal of this action into the Circuit Court of the United States, and to stay all further proceedings on this action. On the 25th of May an order to show cause why such removal and stay should not be granted, was made; and on the 6th of June, 1855, an order was made, as follows :—■

“ The defendants’ motion to remove this action into the Circuit Court of the United States, coming on to be heard, and having been argued by Mr. Platt for the motion, and Mr. Cutler in opposition thereto; and it appearing to the court that the defendants appeared by their counsel and opposed a motion for an injunction, and read and filed papers in opposition to such motion; and the court being of opinion that by so doing the defendants submitted themselves to the jurisdiction of this court, and virtually appeared in this action, and that sucn appearance was made on the 14th day of May last, and before the said petition for removal was filed, and that it is, therefore, too late to make such application for removal ;

“ It is ordered, that the said motion to remove the said action to the Circuit Court of the United States, and to stay all proceedings in this court, be, and the same is hereby denied, without costs.”

From the latter order the defendants appealed to the General Term.

Peter Y. Cutler, for plaintiffs and respondents.

James N. Platt, for defendants and appellants.

The Act of Congress may be thus analyzed: It is to be made to appear, to the satisfaction of the state court, that a suit is commenced in it by a -citizen of the state in which the suit is brought, against a citizen of another state; next, that the matter in dispute exceeds the aforesaid sum, or value, of five hundred dollars, exclusive of costs.

Again: the defendant shall, at the time of entering his appearance in such state court, file a petition for the removal of the cause for trial into the next Circuit Court to be held in the district

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where the suit is pending, and offer good and sufficient surety for his entering in such court, on the first day of its session, copies of the said process against him, and also for his there appearing and entering special bail in the cause, if special bail was originally requisite therein. These pre-requisites being complied with, it shall then be the duty of the state court to accept the surety, and proceed no further in the cause; and any bail that may have been originally taken shall be discharged.

The preceding section of the same Act (Act 1789, Ingersoll’s Abridg. § 9, p. 87) declares that the Circuit Courts shall have original cognizance, concurrent with the courts of the several states, of all suits of a civil nature at common law or in equity, where the matter in dispute exceeds, exclusive of costs, the sum or value of $500, and (among other cases) when the suit is between a citizen of the state where the suit is brought, and a citizen of another state.

Ho one contests that the jurisdiction of the state courts, and that of the United States courts, is concurrent. It is an admitted rule, that in cases of concurrent authority, the tribunal which first obtains jurisdiction, and is competent to administer it, will retain it, and another will not interfere. It is equally certain that the Act of Congress confers a privilege innovating upon this rule, and prescribing how and when this privilege may be exercised. It seems to me a manifest deduction that the statute must be, in its fair construction, pursued, or the acknowledged jurisdiction of the first tribunal must be sustained.

In accordance with such a view, the courts of .the United States have remanded causes, where the application was too late, or the state court had improperly allowed the removal. (Gibson v. Johnson, 1 Peters, C. C. 44 ; Wright v. Wells, id. 220; Administrators of Belknap v. The Northern R. R. Co., 25 Ver. 715; Ladd v. Tudor, 3 Wood. & Minot, 326; Ward v. Airedando, 1 Paine’s C. C. R. 410.)

The right of determining whether the state court will continue to exercise an admitted jurisdiction in a cause, must exist to some extent in that court in the same manner as it exists in the Circuit Court of the United States, to decide whether it possesses it. In each case the court is governed by the statute, and in each tribunal that statute must be interpreted and applied to the particular

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case. The state court must be satisfied as to the sufficiency of the surety. It must be satisfied that the sum or value in dispute exceeds $500, a question regulated by the amount claimed in the action. (16 Peters, 104.) And it is to judge whether the petition has been filed, at the time of entering the appearance in that court. Thus far a discretion, indeed a duty, is incumbent upon the state court.

The question, then, comes to this: What is the meaning of the phrase, entering his appearance in the state court, which the statute employs ?

By a rule of the Supreme Court of this state, which has long been in force, service of an appearance or retainer by an attorney, shall, in all cases, be deemed an appearance, except where special bail is required. And the plaintiff, on filing such notice at any time thereafter, may have the appearance of the defendant entered nunc pro tunc. (Rule 26 of Supreme Court; Rule 25 id., 1847; Rule 7, 1854.)

The notice of retainer was, in Francis v. Sitts, ( 2 Hill, 362 ,) held to have the same effect as if the defendant had actually entered an appearance with the clerk. ' In M'Kenzie v. Van Zandt, ( 1 Wend. 1 ,) a notice of a motion to be made by an attorney, as attorney for the defendant, was held equivalent to a notice of retainer, and that to an appearance. (See, also, Quick v. Merrill. 3 Caines, 133.)

By the 139th section of the Code, from the time of a service of a summons in a civil action, or the allowance of a provisional remedy, the court is deemed to have acquired jurisdiction, and to have control of all the subsequent proceedings. A voluntary appearance of a defendant is equivalent to personal service of the summons upon him.

The summons prescribed by the Code, and used in this case, no complaint accompanying it, does not require a defendant to appear, but only to answer. (§ 128.) By the 130th section, the defendant may compel service of the complaint, by causing notice of appearance to be given, where the complaint is not served with the summons. When it is beyond all doubt, an answer, with notice of retainer by an attorney, would be a sufficient appearance.

Under the 139th section, this court has held, that where a de

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fendant served an answer, it was such a voluntary appearance as precluded him from saying that jurisdiction did not appear on the record, on the ground that it did not appear that one of the parties, jointly liable on contract, had been served with process, or resided within the city. The objection was personal, and cured by such appearance. (Mahany v. Penman, 4 Duer, 603 .) So in Higgings v. Rockwell, ( 2 Duer, 650 ,) Justice Bosworth says, the voluntary appearance of a party subjects him to the same liabilities as if the summons had been personally served upon him; and he acquires all the rights of a party personally served.

What, then, is the entry of an appearance in a state court must be interpreted by the course and practice of that court; and, I think, that what is held in such court to be a submission to its authority in the cause, whether coerced or voluntary, must be deemed an appearance: and further, when such submission has once been made, it cannot be retracted.

With this exposition several decisions in our state will be found to agree, where the motion has been either granted or denied. In support of this proposition, the opinion cited and commented upon: (Jackson v. Cantine, 4 J. R. 493; Redmond v. Russell, 12 J. R. 153; Livingston v. Gibbons, 4 J. Ch. R. 94; Attorney-General v. Pearson, 7 Simons, 302; Norton v. Hayes, 4 Denio, 245 ; Field v. Blair, Code Rep. N. S. 292 and 361.)

The views taken by Justice Spencer and Chancellor Kent, in the cases cited, are consistent with decisions or opinions expressed in the Supreme Court of the United States. Thus, Mr. Justice Catón, in the case of Randall v. The Delaware and Raritan Company, ( 14 Howard, 80 ,) where he speaks of the injustice of citizens of another state being forced into the state courts, as tending to deprive them of the benefits of the constitution, speaks of it as being done without the power of election. And Mr. Justice Grier, in Marshall v. The Baltimore and Ohio Railroad Company, ( 16 Howard, 329 ,) while he condemns the interpretation of the act as if it were a penal statute, to be construed by its very letter, without regard to its meaning and spirit, yet speaks of it as conferring a privilege, and that the right of choosing an impartial tribunal is- a privilege of no small practical importance.

All these authorities show that the question is, whether the appearance of the defendant has been an act importing that he sub

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mits the determination of a material question of his case to the judgment of the court. It appears to us that few acts can be more conclusive than an appearance by counsel in open court, upon the argument of a motion for injunction, the reading of affidavits to oppose it, the endorsement of such affidavits with the names of attorneys, and a motion by defendants to stay all proceedings, and the recital of all this in an order of the court. And, especially, when this appearance and this resistance is to decide the chief, if not the only point of controversy in the cause.

The order appealed from must be affirmed, with costs.

The opinion is reported at length in 12 How. Pr. R. 176.