Remington v. Central Pacific Railroad

delivered the opinion of the court.

This is a writ of error to the Circuit Court upon a judgment dismissing the action for want of jurisdiction of the defendant. That question is certified from the court below.

The action was brought in the Supreme Court of the State of New York on April 10, 1903, by serving a summons on a director of the defendant in error, the railroad. On April 22 the plaintiff’s attorney gave twenty days’ additional time to the defendant in which to appear generally or specially or to move to vacate the summons. On May 11 a firm of lawyers gave notice of a motion to set aside the service, and also that they appeared only for that purpose. An agreement was made giving the defendant .time to appear after the motion- was decided. The motion was not decided until September 28, 1903, when it was denied and an order to that effect was entered on October 2. The defendant’s attorneys filed a notice of appeal on October 15, and the next day gave notice of a motion to stay proceedings on the order, to be made on Octp

In the Circuit Court the defendant renewed its motion to set aside the service of . the summons, the plaintiff objecting on various grounds, which will be dealt with, and moving to remand the case. On July 23, 1904, the court granted the defendant’s motion and overruled the plaintiff’s, and on August 30 a judgment was entered dismissing the action for want of jurisdiction of the defendant. See Wabash Western Ry. v. Brow, 164 U. S. 271 . The plaintiff’s rights were saved by a bill of exceptions, the form of the judgment and a certificate of the judge, and the case now is brought here.

It is objected by' the defendant that this court has not jurisdiction, on the ground that it does not appear that the want of jurisdiction of the court below as a Federal court was the ground of the judgment. But it appears clearly that the ground of the judgment was the absence of service on the defendant, and that the plaintiff denied the validity of the attempt to remove. See Excelsior Wooden Pipe Co. v. Pacific Bridge Co., 185 U. S. 282 , 284, 285, and cases cited. The former question was decided to be subject to review on error by this court in Shepard v. Adams, 168 U. S. 618 . That case has not been overruled. The latter question was held also

Coming then to the motion to remand it is said that the petition to remove was filed too late, because the time for answer had expired. It would be a strong interpretation of the New York Code of Civil Procedure, § 418, to say that it requires an answer within twenty days after the summons when no complaint or even notice stating the sum of money for which judgment will be taken, § 419, has been served. See Dancel v. Goodyear Shoe Machinery Co., 106 Fed. Rep. 551 . But it is a sufficient reply to the motion and to the objection to the removal that the petition was filed as soon as the case became a removable one. Powers v. Chesapeake & Ohio Ry., 169 U. S. 92 ; Kansas City Suburban Belt Ry. v. Herman, 187 U. S. 63 , 67, 68. The suggestion that the defendant was estopped by the fact that it followed up its motion to stay in the state court in. accordance with its notice, on October 24, when the right to remove had been made to appear the day before, seems to us too technical, supposing it to be open here. Indeed it was a proper preliminary in one respect. The order made on that motion was “ that the defendant be relieved from any default in appearing herein, and that all proceedings on the part of the plaintiff be stayed, pending said appeal and until ten days after the decision thereof, except” an order for the examination of the plaintiff. It did not estop the defendant from insisting on a. substantial right that it got rid of a purely formal objection which still is pressed — in our opinion without ground. Dancel v. Goodyear Shoe Machinery Co., 106 Fed. Rep. 551 . The order did not take effect until October 26. Wilcox v. National Shoe & Leather Bank, 67 App. Div. N. Y. 466; Hastings v. Twenty-third Ward Land Improvement Co., 46 App. Div. N. Y. 609; Vilas v. Page, 106 N. Y. 439 , 455.

It is urged that the petition did not justify removal, because the allegation that the time had not arrived at which the defendant was required to answer or plead was an allegation of a conclusion of law. Allegations which involve such conclu

We come then to the setting aside of the summons. We assume, for purposes of decision, as we already have assumed, that Shepard v. Adams, 168 U. S. 618 , is consistent with the debMons that the jurisdiction of the Circuit Court as a Federal court only is in question. Louisville Trust Co. v. Knott, 191 U. S. 225 ; Bache v. Hunt, 193 U. S. 523 ; Courtney v. Pradt, 196 U. S. 89 . If there has been no valid service the court has no power, and a distinction is possible between such a cáse and a mere question touching the proper limits between equity and law, or the traditional authority, of the court,. We leave Shepard v. Adams as we find it, since a reconsideration of the point is not necessary to decide the present case. It is said that the decision of the state court, although appealed from, was rcs judicata. But it stood no higher than a similar decision made by the Circuit Court, if the case had been begun before that court. It may be that the defendant would have had no right to renew its motion, but the Circuit Court would have had power to give it leave. If the Circuit Court was satisfied that it, or its predecessor the state court, had made a mistake,

The plaintiff in error does not argue the merits of the order of the Circuit Court. Assuming that they, as well as the jurisdiction of the court to make the order, are open here, we see no sufficient reason for disturbing the decision. The Circuit Court was warranted by the affidavits before it in finding that the defendant was doing no business and had no property in the State of New York, and that the service on a director casually within the State for a few days was bad. Conley v. Mathieson Alkali Works, 190 U. S. 406 ; Geer v. Mathieson Alkali Works, 190 U. S. 428 . The arguments do not seem to us to need to be noticed in greater detail.

Judgment affirmed.