shall be brought against any person by any original process or proceedings in ar.y,otlier district than that whereof he. is an inhabitant. The Hamburg-American Packet Company is incorporated under the laws of a European government. Its principal offices and· place of business are, and always have been. situated in the city of Hamburg, Germany; all i1;&diJleptors. and stockholders being residents of the German empire. The business of the said company is that of an ocean carrier between forthe port ofNew'X'ork. Its financial agents in this country are Kunhardt & Co.; and it advertises their office as its office in New York...' By Kunhardt & Co. t as 'its agents. here,its usual monetary and financialtransactionsa,re conducted, but the piers, to which its vessels come are in New Jersey. There it receives and diSCharges cargo, and maintains an 'office :for the transaction of the matters immediately connected with its actual industrial operations iIi this ;country. Upon this state of .facts the defendant the Hamburg-American Packet Company cannot be <)onsidered an inhabitant of the Southern district of New York. If thegeJ:?,eralappearancebe as an order may be entered setting aside the service of process upon that company.
'LocKHAnT 'D. MEMPHIS
& L.' R. R,.'Qo. /lE' al. .,
to judgment .bydefault ·fOri any faiJure of ,his adver8,!,r,y PIll. qisr.,p,leading withintlj.e .time prescl'ibed by the Tennessee Code fail to enter judgment for the default, the opposite party may file the pleading at any time. indefinitely, as a matter of right;. withol\tapplication to.the court to .lInlarge, the time; wherefore a petition tpr removal to the .federal cOUrt is filed' in time, under the act of March '<I, 1887,11 flIed before or at the time the defendant files his plea to the declaration or complaint, although the oxIg!n'!'lt!me by CodeJ;as expired. as thll rjgllt of removal is co-extenslve'Wlth'the rIght to plead, In such a case. . .. . , B. S.um2 SitEiitIFF's [f·:tbe.:plainti1fhaveleave to amend a'sheriff's retuxn showing parties t1> have been ,served, not hefore so appearing on,the.l,'ec.ord. this necessarily exteI\dsthEi defendant's time. for pleading indefibitel!, under the Tennessee 'i .. ' 'practice. and the time f1>1' removal is likewise extellaed, since he cannot be cqUipe!Jeqto plead in such a case; within the stattitorylimit, under the penalty of a fQrfeitjlre of his option.of remova.lif he d,onot waive the irregl\lar. . ity, and r'emoveor plead.
SAME-PLEAS IN ABATEMENT.
If the defendant file pleas In abatement to the writ within thetiine limited by the ,Code for filing pleas, or within any subseql\ent time belongingto hil]l as a right becaQse the fJl.ilure of the plaintiff to take a defal\lt for want of a plea, or because of an' or\:ler of the C(lui't allowing time to plead, this extends indefinitely the time for pleading to the declaration or complaint, and untUthe pleas in abatement are dispOSed of. and the right of pleading to the declaration or complaint has expired. the right of If, then, neither an order of the court nor any general rule of practice fix sometime
a limjtfor fl1rther pleading, tbe.rignt of ;remp,val Continues as long as the right to plead lasts,and a removal petition is mtime. lIlad at or before t.he time of pleading to the declaration or complaiilt.
On Motion to Remand. Turley & Wright, for the motion. W. G. Weatherford,
HAMMOND, J. The declaration in this case was filed March 21,1888, within the first three days or the term to which the writ was returnable, and strictly in accordance with law and the practice of the court.. Thomp. & S. Code Tenn. 4238; Mill & V. Code Tenn. 5010. The defendants, by the next succeeding section of the Code, had "the first two days after the time allotted for filing the declaration" to appear and demur or "otherwise the plaintiff'may have judgment by default," says the same section. Thomp. & S. Code Tenn. 4239; Mill & V. Code Tenn. 5011. But they did not do this, nor did the plaintiff take any judgment by default, nor Was any step taken by either party until April 25, 1888, when thedefendants-still during the appearance term-filed a plea. in abatementto the'writ, and asked thil.t it be quashed. On the 28th of April the plaintiff filed an affidavit, and on his motion the sheriff was allowed to amend his return so as to show that he had served the summons upon one Jones, not only as the agent of the defendant company,but also as tbeageptof otherdefendl1ntsnamed in the writ as trustees bfthatcompany. Ih this condition hfthe record the March or appearance term of the' court adjourned on the 18th day of May, 1888, and during the next sticce:eding May term, 1st day of June, 1888, the trulitees so named filed their plea in'abatement, whereupon, on June 5th, the plaintiff filed his demurrer to the last-mentioned plea,li.n:d a replication to the firet-mentioned plea in 'abatement, denying its averments. On the 2d of';fuly, 1888; the c.ourtsustained the plaintiff's said,demurrer,and'by the order of-the court the dsai'ddefendants are allowed to plead, 'ftiither :to' 'plai'lltiff's declaration." But on the 7th day of July, during the term,-the removing defelidants filed their petltHm and bond for removal 19 this court, and on the 11th day of Jul)Tan ohler 'Was entel'edin thatcourtthat the case be removed. Thisrnotion is now ,made to remand solely on the ground that the petition was not filed within the time required by the act of congress of ¥arch 3, 1887. . ' By the third section ofthat' act the time designated for filing the petition to remove is thus defined: "He mayrnake and file a petition In such suit In such state court at the tlme, or any'tiniebeforethe defendant is rpquired by the laws of the state or the rule of the state court in which such suit is brougbt.to Rnl:lWer or plead to
Act 13, 1888, 495.) : , . It seemed to me at firsUhat it waS entil'elyclear that this ,petition was not in time. and that it should' have been filed within or before' the ·two ;days to plead by the-sectionof the':l'eullessee
tbedeclill'ationol' complaint of tbt> l,laintiff, for removal," etc.
Code already quoted, but a careful examination of the record, and an investigation of the state· practice, bas convinced me to the contrary. In the first place, the defendant who filed this petition, the defendants Dow, Matthews, and Morgan, described as trustees of the defendant railroad company, were not before the court at that time. At least, by plaintiff's own confession in pleading, the return of the sheriff as originally made did not show them to have been served with process, and the amendment. making that showing was not allowed or made for more than a month after the time to plead had expired. He could not then have shown by the return, as it stood, that he was entitled to a judgment by default; and, if he could not take judgment by default, surely there was no compulsion on the defendants to plead, although they may have been served in fact. The order allowing the amelldmem of the return says it shall relate back to. the. date of the original return, but this could not a,ct retroactively to put the defendants in default at that time, and impose on them a compulsion to plead before the amendment was made, or to fix a limitation 1,1pon the privilege of removal by expiration of time to plead under these seqtions of the Code, which did not exist without the amendment. The plaintiff could, by more speedily amending the return, have put tbe record ,in a condition to have given him the right to proceed at th$t time to judgment by default; but this he did not do, and it does not appear that, witl;1in the first five days of the term allowed by the section of the Code Qnd(;lr consideration for filing their pleas, the defendants were "required" to answer or plead, to use tbe language of the federal statute for removals. They were not boutld, I should say,.to waive tbe defective return, and to plead, thereby incurring the duty of applying for removal within those days, under penaltyc>f forfeiting their option of removal to the federal court. .Indeed, the Code does not seem to be imperative that the plea shall be filed within those five days, or not at all, without some leave, of the court enlarging the time, as was the fact in the Nevada case cited by counsel,-Wedelcindv.Southern Pac. Cq.,36 Fed. Rep. 279. Weknowthat such is not our practice, but that without any leave of the court, and as a matter of right, the parties may, on either side, gp on with their pleading, even after default, until the adversary party objects by some motion to take 'advantage of the default, and, this advantage must be taken before the defaulting party has cured the defect by pleading in fact; and unless the advantage sought to be taken of the de!ault be strictly pursued, iUs always considered as waived; Of, in otller words, pleading on either side is a matter of right with us, notwithstanding any default as to tim.e of filing the plel!'-', at any time before there is a judgment upon the default which stops that right. Pleadings are never stricken from the files, or. rendered otherwise nugatory, because they are not filed Code, or within the tim.es prescribed by these sections of the because the previous leave of the court to file them has not been had, nor ,are they filed, when so out of strict time,. by any indulgence of the plaintiff, or consent of his, or by any indulgence of the court, or by its leave; not at all, but always as a mutter of rightlas long as the other
LOCKHAR'l' fl. MEMPHIS &: L. R. R. CO.
side does not choose to take a default strictly according to his right to du that thing, and he cannot take it in any other way but strictly. Defaults are strictissimi juris with us, and no pleader needs to apply to the court for relief against them until his adversary has in fact taken advantage of his default, or is about to do so, and even then, on good cause shown, the court may "enlarge" the time for pleading, or "excuse" the failure to plead within the time prescribed. Thomp. & S. Code Tenn. 4241; Mill. & V. Code Tenn. 5013. This has always been the practice of the state, founded in the common law, encouraged by legislation, by the courts,and in every way, in practice. It is perhaps the main cause for delays in pleading, for adversaries are not quick to press defaults; and if, as in other states, the failure to file a pleading in time were made that no relief could be had except upon good cause shown to the cQurt, and the courts should be strict in trat regard, then promptness in pleading and procedure would be a necessity. But this has not been our habit, and the right to plead at any time before default extend into judgment if! a fixed right in our practice, and this will explain why the cases cited from other states construing this section of the act of congress in its relation to the time of filing, the petition for removal may often not apply to this case. Elsewhere the general rule may be that it requires an order of the court to enlarge the time .of pleadil1lg, but with us the reverse is the rule, and it requires an order .of the court declaring the default to close the privileKe of pleading at. will, so fa.l.' .as relates to the time of pleading, at least. It is sGlarcely necessary to cite authorities forthis statement of the practice, but it may be first observed that the language of the Code itself bears it out. The penalty for not filing a declaration within the first three days of the term is that, "upon motion of the defendant," the suit may be dismissed, and for not filing the plea within the next two days, that the plaintiff "may have judgment by default," and if either party fails to plead at each sub,sequent step within two days, it is "on penalty of having the !luit dismissed, or judgmep.t taken by default;" and no other consequence whatever is declared or provided for by the statutes themselves. Thomp. & S. Code Tenn. 4238-4241; Mill. & V. Code Tenn. 5010-5013. Judge ·Caruthers, in his" History of a Lawsuit," from which we all take our first lessons in practice' in this state, traces the steps, and describes the practice, asl have indicated. Caruth. Lawsuit, §§ 97,171,172,278: He says, in speaking of the failure of the defendant to move for a judgment by default for want of a declaration filed in time: "Until it isdone, the plaintiff may at anytime file his declaration.", ld. § 171. 4gain, descdbing the practice ofcalling the plaintiff out before takingJUQl/;ment by default for want of a declaration, he says: "As he is called to come .and file bis declaration, it would seem that he might come and file it, .although he ha-d neglected to do it before, It would seem to be a mock:' ery to call him to do a thing, and then not let him do it." The same practice, of course, applies to defaults by the defendant. To show the Jintiquity of this practice, and that it is such a legal right that it is error -to deprive the party. in default of his privilege of filing his pleading at
, 'FEDERAL REPORTElt,
vol. nlay be cited:
Piin'dleyv) Joh"rt8!Yn! 1. Overt.344jTurnI!:r v. Carter, 1 H-ell.d, 520; .Byrd v. Bank,2Sw.tn, 48. . ,
bef<>re1heentry ofa judgnient upon the
The local rules of practice in the court from which this case comes, cited by counsel in his 'brief for defendants, which fix the motion days upon which defaults may be taken, are based on this settled practice" which onfhewhole may be said to be contrived so that he who would take advantage of a default in the time of filing a pleading shall do it only atce1'tain' fixed times, when the one in default may have an opportunity to resist the applicatIon for causo, if he have ,not in the mean time filed hi$ pleading. Moreover, these sections of the Oode do not require pleas "to the declaration or complaint" to be filed within the time limited by them, only, or at all, if the defendant has any defense bymotion to dismiss, by demurrer, by plea in abatement,or other dilatory plea like these. It is only in the absence of such dilatory or preliminary defenses that these sections can be said to fix a tilne within which a plea" to the declaration or complaint" is due, and consequently to fix a time by which the right of removal is limited under this act of congress. If the dilntory or preliminary pleas be filed, the Tennessee Code is obeyed,and the "requirement" of that statute is answered; 'but the kind of pleas mentioned in the act of congress, and the time for filing them, remaiti sUbject to the futurtl exigencies or contingencies arising in the progress ofthecase. Under such apractice,which has been detailed with fullness to exhibit the force of what is about to be said, it is quite difficult to determine just when the time for removing a oase must· expire under'this1'1ew act of congress, even when considered in its simplest form, without'telation to the complications appearing in this case, arising out of the oharacter of the pleas, as pleas in abatement. to the writ; and as not being: in any strict sense pleas to the deolaration; for it will be observed that the act ofcongress does not limit the time by any other character of pleading than [one "to the declaration or complaint of the that'niay mean; whether in the broad sense it in..' tends to describe any kind of pleading in the suit and to require the removal to barnade substantially, asthe act of 1789 did, "at the time'of entering his appearn:nee:in such state court," (Act 1789; c. 20,§ 12, 1 St. 79;) or to describe only pleas ina technical seuse, as contradistingUIshed from demurrers and the like, which, while going to thedeclaration, are not pleas; and as contradistinguished from pleas in abateluent, which, while they are pleas, are only- to the writ; and not to the tieclaratioDorcomplaint. I have been inclined to think that the authors of this act of congress meant to nse the 'phrase "to answer or plead to the declaration or complaint of the plaintiff" in the broad sense just mentioned, and not the othel';fodt,does not very obviously appear why the distinctions of the other and stricter sense mentioned. should be observed i'o this matter;' but thedeparture'f"rom the act ofl789, 'which has been always acknowledged 'and charaoterized8s a masterpiece of legishltion, expressing with precision its exact mealling, is too plainly conspicuous to admit of that construction. Ifthisnew act intended to 'restore the
LOCKHA.RT II. MEMPHIS &: L. R.::a.
obviously unifoi'm and 'wise regUlation of theaet of 1789, that the defendant should determine once for all when he first came into the state court whether he would make his defense there or exercise his right of ·removal, it could not have used any language so exactly expressing that intention as that of the act of 1789 itself; but, not doing this, we must interpret the language used in this very ind finitely expressed and obscure act as best we may, according to the practice in each state. It is 'also quite clear that it did not intend to allow the latitude of time permitted by the act of 1875 for removal "before or at the term at which said Citusecouldbe first tried, and before the trial thereof." Act Maroh 3, 1875, § 3, (18 'St. 470.) Why the defendant should be allowed in the state court to take any dilatory procedure preliminary to the plea to a demurrer to the the declaration,-as a plea in abatement to,the declaration" etc. ,----before any limitation for the right of removal should may not be quite so clear, but that he is allowed to do so seemll plain enough. This court held in Gavin v. Vance, 33 Fed. Rep. 84, 92, th,at thidilingof an answer is, before the time specific·ally fixed' by statutes or rule of court.....did not terminate the right of removal,' and that a removal petition filed the time allowed fOr pleading had expired was in time; and it wRsintimated that the expiration df that time would terminate the right ofreinoval. This is true, however, only in the general sense. Whenever there is fixed, whether by ·statute, :rnle of practice, :ora special order in the particular case, 'a spec,time' :toplead, the that time oloses the right afremoval.Butiwhere there:is no specified or fi'xeditime operating to,close the right Of pH!ading,the right of removal1astsas long as. the right of ;pleading does,and that time which' closes the one, closes the other. 'When,therefore, the' not plead within the time mentioned . in the' sections 'ofthe Tentiess'eeCode alrea:dy, cited as giving the plaintiff the right to a judgment by default, and the plaintiff does not choose to proceed against him for the default in the manner allowed by the practice, the time to plead is ipso facto enl'arged indefinitely, and he may file the petition for remqvat at any tirpe before he pleads in fact, or sim ultaneously along with his plea,' but not after\Viird!3} I should think;, because the language of the act of congress is, ".at the time, or any time before, the defendant is required by the'laws of the state," etc. If he file the petition along with his plea, he is within time required, :,by his ownact of pleading he fixes a time whkh .before was indefirdte and by a day certain; but likewise by that Ret he terminates his '. righf,to. qyhimself fi::ltipgthe limitation upon it, a,od along with itihenxeB the limitation of his right to remove. So his petition for re'xUo-vaJ)nust not be filed after his plea, oritistoo late. In .Gavin v. :Va'l),Cfi;,fm,prfL, ''\yas filed,. and was held to terminate the right of removal, was filed before the time which was fixed by a 1ay certain to plead, which is not the case here. As long as some particular time, which is specified as the time within which the plea is allowed, lasts, the language of this act ofcongresa already quoted :operates ex vi termini to keep open the right of removal ; but, when no time is
anywhere specified, necessarily, it must with the act of pleading itself. and .the removal petition must be filed either before or at the time of pleading to the declaration. This disposes of the case, unless the filing of the pleas in abatement terminated the right of removal under this ruling. But it is plainly manifest that they did not. How!3ver it may be elsewhere, in Tennessee a plea in abatement is not a plea declaration or complaint of the plaintiff,"-to use again the language of the act of congress. It goes to the writ only, and in this case challenged the truth of the return of the sheriff. If the decision be in favor of the plea, the writ, and of course, along with it, the declaration, abates; but, if the decision be against the plea, the judgment is always, as it was in this case, re8ponaeat ouster, and the delEmdant is allowed further time to plead to the declaration,-generally a specified time named in the order of the court, though in this case no time was fixed. The very object of the plea was to determine the fact whether .the writ and its service required the defendants to plead to the declaration, and there can be no doubt under our practice that the to this until their plea defendants were not required to in abatement was disposed of, and then, both by this particular order of the court, which failed to fix any limit of time for pleading, and by the usual practice, they had an indefinite time to plead; the declaration, after the demurrer to the plea in abatement had Ileen sustained. Caruth. Lawsuit, §§ 183. 186, 187; Morgan v. McCarty, 3 Humph. 147; Robb v. Parker, 4 Heisk. 58, 70; Eattelle v.Rolling Mill Co .. , 16 Lea, 355, 365,. 868. If the order allowing the; defendant to .plead over had fixed a day certain within which to plead, or if the rules of practice in such' a case should fix a day certain, day's ending would terminate the .right of removal, unless the time were previously enlarged. But neither of these conditions existed, and the removal was in time. Motion overruled.
et al, 11. RUTLAND R. Co.
(Oircuit' Oourt JJ. Vermont. March 80,1889.)
The grantees' of a lease brought a bill in equity, alleging that the lessor claimed that the lease would terminate with the death of the origillallessee, and asking for.a reformation of the lease if such was its construction. The lessor answered. asserting such claim. and testimony was showing that the lease was to be terminable by the election of the lessor to take certain property on the leased premises at its value; and the lessor submitted to a decree establishing such construction. Held, that the orators were the costs of taking their testimony and the decree, but not to the costs of the bill.
William G. Sha'JJ, for orators. Oharles A. Prouty, for defendant.