Burton v. Smith

191 N.C. 599

Opinions

Connor, J.

At tbe expiration of tbe time prescribed in tbe order for tbe publication of summons in tbis action, tbe court having found from tbe affidavit of tbe printer (C. S., 489(2), that notice of tbe summons bad been duly published as required by C. S., 485, tbe defendant, S. R. Smith, was then in court, tbe service of tbe summons was completed, and tbe Superior Court of New Hanover County bad jurisdiction of defendant. C. S., 487. Before rendering judgment by default, at February Term, 1925, tbe court adjudged that tbe summons bad been duly served. Hyman v. Jarnigan, 65 N. C., 96. Tbe principle that a general appearance in an action or proceeding, pending in a court of competent jurisdiction, waives all defects or irregularities both as to summons and service, is well established, and has been consistently enforced. C. S., 490, and cases cited. It has no application, however, to tbe facts of tbis case, and affords no aid in tbe decision of tbe question presented by tbis appeal. Tbe appearance of defendant to move, under C. S., 492, that tbe judgment rendered in .this action against him be vacated and set aside, nothing else appearing, was an admission by him that tbe court bad acquired jurisdiction by tbe publication of summons as provided by statute. Tbe appearance of a defendant in a suit in a state court, whether general or special, does not operate as a waiver of bis right to remove tbe action to tbe Federal Court for trial. Goldey v. Mourning News, 156 U. S., 518, 39 L. Ed., 517; Stevens v. Richardson, 9 Fed., 191; Grotor Bridge Co. v. American Bridge Co., 137 Fed., 284, 26 Ann. Cas., 1337, and note, 23 R. C. L., 739. Defendant in tbis action did not contend, at tbe time be made bis motion, nor does be contend now, that there was any defect or irregularity in tbe summons or in its service upon him. Motor Co. v. Reaves, 184 N. C., 260; Wooten v. Cunningham, 171 N. C., 123; Barnhardt v. Drug Co., 180 N. C., 436. He contends that under tbe Constitution of tbe United States, and the statute duly enacted by Congress, pursuant thereto, be has tbe right, at bis election, to have tbis cause removed from tbe State to tbe Federal Court for trial; that be has neither lost nor waived tbis right.

Tbe District Court of tbe United States for tbe Eastern District of North Carolina has jurisdiction of tbe action stated in tbe complaint, in favor of plaintiff, a citizen of tbe State of North Carolina, and against tbe defendant, a citizen of tbe State of New York, tbe amount involved being in excess of tbe jurisdictional sum of $3,000. Swain v. Cooperage Co., 189 N. C., 528; U. S. Jud. Code, sec. 24; U. S. Comp. Stat., sec. 991. Tbe jurisdiction of tbe Superior Court of tbis State is concurrent with that of tbe District Court of tbe United States; either court may try tbe action, and render judgment, finally determining tbe rights of tbe parties. Tbe State court bas jurisdiction of tbe defendant and of tbe subject-matter of tbe action, but must yield tbe right to try tbe action to tbe Federal Court, at defendant’s election, unless defendant has lost or waived his right of removal.

Defendant bas tbe right to have tbe action, commenced in tbe State •court by plaintiff, removed to tbe District Court for trial, provided tbe notice was given and tbe petition and bond were filed, as required by statute, prior to tbe expiration of tbe time within which be was required to file answer by statute of tbe State, or rule of tbe court in which tbe action was pending. U. S. Jud. Code, sec. 29; IT. S. Comp. Stat., sec. 1011. Tbe right of removal may be lost by failure of defendant to' give notice, and to file petition and bond required, within tbe time prescribed; or it may be waived by any act of defendant, from which it clearly appears that be bas elected, not to avail himself of tbe right of removal to tbe. Federal Court, but to join issue with tbe plaintiff for trial in tbe State court. Southern Pacific Co. v. Stewart, U. S., 62 L. Ed., 345; Murphy v. Stone, etc., Eng. Corp., 44 Mont., 146, 119 Pac., 117, 26 Ann. Cas., 1134, and note. If defendant in an action pending in a State court, which is removable to tbe Federal Court for trial, requests such court to grant an extension of time for filing bis answer beyond tbe time prescribed by statute, or fixed by rule of court, and such request is granted, or if defendant' accepts such extension of time, made upon motion of plaintiff, or by tbe court, upon its motion, be thereby waives bis right of removal. 23 R. C. L., 514. A defendant who bas invoked or who bas acquiesced in tbe exercise by tbe State court of its discretionary power to grant him relief beyond bis strict legal right, without objection and exception, is conclusively presumed to have elected not to avail himself of bis legal right to tbe removal of tbe action to tbe Federal Court for trial; be bas elected to try tbe issues in tbe State court. Patterson v. Lumber Co., 175 N. C., 90; Pruitt v. Power Co., 165 N. C., 416; Ford v. Lumber Co., 155 N. C., 352; Bryson v. R. R., 141 N. C., 594; Howard v. R. R., 122 N. C., 944. Tbe Superior Court of this State has tbe power, to be exercised by tbe judge in bis discretion, to grant an extension of time, beyond that prescribed by statute, for tbe filing of an answer. C. S., 536; McNair v. Yarboro, 186 N. C., 111; Howard v. Hinson, ante, 366; Greenville v. Munford, ante, 373. It bas no power, however, to extend tbe time within which a petition for removal to tbe Federal Court shall be filed. 3 R. C. L., 610.

In Austin v. Gagan, 39 Fed., 626, 5 L. R. A., 476, it is said, “Tbe policy of tbe law is to require parties to take tbe first opportunity to change tbe forum, and in default thereof tbe right is waived.” Failure of defendant to demand change of venue, when the county designated by plaintiff in the sulmmons and complaint is not the proper county, before the time for answering the complaint expires, is a waiver of the right. C. S., 467, and cases cited.

It has been held by this Court that the right of a defendant against whom a judgment has been rendered, in an action to which he has been made a party, by publication of summons, as provided by statute, to have said judgment vacated and set aside under C. S., 492, to the end that he may defend said action, is absolute and not within the discretion of the judge. In Rhodes v. Rhodes, 125 N. C., 191, it is said, “The object of this section is to enable a nonresident, who has not been personally served with summons, to come in, within the prescribed time after judgment, and assert his right as fully in every respect as he could have done before judgment had he been personally served.” In Page v. McDonald, 159 N. C., 38, it is said, “The statute requires that a nonresident, upon good cause shown, must be allowed to defend after judgment, if his application to do so is made within one year after notice of judgment, or within five years after its rendition, preserving the rights of innocent purchasers. The right to be let in for the purpose of defending the action does not depend upon the exercise of the judge’s discretion. The terms of the statute are mandatory, and the judge must set aside a judgment and permit a defense if good cause can be shown, and what is- sufficient cause must be a question of law.” See, also, Moore v. Rankin, 172 N. C., 599; Foster v. Allison Corp., ante, 166. Under the decisions of this Court, defendant, by' his motion that the judgment rendered at Eebruary Term, 1925, be vacated and set aside, for that summons in this action had been served upon him by publication, and that he had had no actual knowledge of the pen-dency of the action, prior to its rendition, did not invoke the discretionary powers of the court, nor did he waive any right by his appearance to make said motion. In granting the motion, the court gave to defendant only the relief to which he was entitled as a matter of right. Lumber Co. v. Arnold, 179 N. C., 269. The decision of the question presented by this appeal, then, necessarily involves but one further inquiry, to wit, did the court allow defendant 20 days from the date on which the judgment was vacated and set aside, under C. S., 492, as a matter of right, or as a matter of discretion?

The language of the statute, pertinent to this question, is as follows: “The defendant against whom publication is ordered may in like manner (i. e., by application to the court), upon good cause shown, be allowed to defend after judgment, or at any time within one year after notice thereof, and within five years after its rendition, on such terms as are just.” Tbe words “upon sucb terms as are just” ought not to be construed as limiting or modifying tbe right to defend, which this Court, in cases cited above, has held is an absolute, legal right of defendant. They should be construed as conferring upon the court, by whose order defendant obtains his legal right to defend, power, by the imposition of just terms, to put plaintiff and defendant, as near as may be, in the same relative position, with reference to the subject-matter of -the litigation, as they were in at the time the action was begun, or at least at the time defendant would have been required to answer the complaint if the summons had been personally served upon him. The court has power to do this by orders with reference to the costs that have accrued, or by interlocutory orders, with respect to property within its jurisdiction, or by such orders, designed to protect plaintiff, who had recovered the judgment, set aside and vacated, upon motion of defendant, upon service of summons on defendant, as provided by the laws of this State, from loss which might result to him from the action of the court. It ought not to be held that the court has power to impose terms upon defendant which would result in depriving him of a right guaranteed to him by law. The right to defend an action necessarily involves the right to answer or demur to the complaint, in accordance with the provisions of the statute or general rule of court, and thus to raise issues of fact to be tried by a jury, or issues of law to be tried by the court. It cannot be said that although this right is absolute, a defendant can enjoy it, only at the discretion of the court. The time within which an answer or demurrer must be filed, in the Superior Courts of this State, is prescribed by statute, and not by rule of court. Such time may be extended by the judge, in his discretion, upon such terms as may be just. C. S., 536.

If it shall be held as law in this State that a citizen of another state, against whom a judgment has been recovered by a citizen of this State in a State court, upon summons served by publication, and who has as a matter of right, upon his application to said court obtained an order setting aside and vacating said judgment, to the end that he may defend the action, under O. S., 492, may file answer or demur to the complaint, only within time to be allowed by the court, in its discretion, then it must follow that, although the action is removable to the District Court of the United States, under the act of Congress, such defendant, by requesting or accepting any time within which to answer or plead to the complaint, waives his right of removal. Unless the time within which he may file answer or plead, after the judgment is vacated and set aside, is fixed by statute, he cannot assert his legal right to relief under C. S., 492, without waiving his right also under the Constitution and laws of the United States, to a removal of the cause from the State to tbe Federal courts. These rights are not inconsistent, and a defendant ought not to be confronted with such a dilemma.

The statute, now in force, prescribing the time within which an answer must be filed to a complaint, in an action commenced in the Superior Court, is as follows:

“The defendant must appear and demur or answer within twenty days after the return day of the summons, or after service of the complaint upon each of the defendants, or within twenty days after the final determination of a motion to remove as a matter of right. If the time is extended for filing the complaint, then the defendant shall have twenty days after the final day for such extension in which to file the answer or demurrer, or after the service of the complaint upon each of the defendants (in which latter case, the clerk shall not extend the time for filing answer beyond twenty days after such service) : Provided, in cases where the complaint is not served, for good cause shown, the clerk may extend the time to a day certain; otherwise the plaintiff may have judgment by default.” C. S., vol. III, sec. 509.

When the judge in his order setting aside and vacating the judgment, provided that defendant was allowed twenty days within which to answer, he exercised no discretion in behalf of defendant; the provision is a recognition of defendant’s right under the statute to twenty days from the date of the order, determining his right to defend, as the time prescribed by statute, within which he must answer or plead to the complaint of plaintiff.

Defendant did not waive his right to removal of the cause from the State court to the United States Court by his appearance in the action to move that the judgment be set aside and vacated under C. S., 492. He did not waive such right by his acceptance of the order, providing that he be allowed the statutory time of twenty days to answer. He filed his petition for removal within the time allowed by statute for answer, and we must hold that it was error to refuse his motion. See Harter Township v. Kernochan, 103 U. S., 562, 26 L. Ed., 411.

The action set out in the complaint in favor of plaintiff and against defendants, some of whom are citizens of this State, and some citizens of other states, is clearly separable, as to such defendants. The action as against each defendant may be prosecuted by plaintiff without regard to the rights of plaintiff to recover of the other defendants. This clearly appears from the fact that plaintiff sought and obtained a judgment against the defendant, S. R. Smith, alone, in the Superior Court of New Hanover County. The order of the-clerk was erroneous, and upon defendant’s appeal should be

Reversed.