This Court has jurisdiction of a writ of error, upon a judgment
dismissing the suit for want of jurisdiction, when it appears in
due form that the ground of the judgment was want of service on
defendant and that the plaintiff denied the validity of the removal
of the case from a state court.
If a petition to remove is filed as soon as it appears in the
case that the amount in controversy is sufficient to warrant
removal, it is filed in season even if the time for answer has
expired under the New York practice, notwithstanding failure to
serve a complaint, as to which quaere.
Page 198 U. S. 96
Following up a motion to stay in the state court the day after
notice of the amount in controversy, and obtaining an order
relieving defendant from any technical default, which order took
effect the same day that the petition for removal was filed, two
days after such notice, does not estop defendant from removing the
suit. The facts appearing of record, an allegation in a petition
for removal that the time has not arrived at which defendant was
required to answer or plead is sufficient.
Presenting the petition to a judge in chambers satisfies the
Although the state court, before removal, has refused, subject
to an appeal, to set aside a summons, the circuit court has power
to reopen the question and to set the summons aside.
service on a director of a corporation which is
doing no business and has no property in the state when he is
casually in the state for a few days is bad.
The facts are stated in the opinion.
MR. JUSTICE HOLMES 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 October
Page 198 U. S. 97
24. On the same October 16, the plaintiff made an affidavit in
which it appeared that the sum which he sought to recover was more
than $2,000. This contained the first definite notice to defendant,
as no declaration had been filed. An order to take plaintiff's
deposition and this affidavit were served on the defendant on
October 23. On October 26, a petition for removal to the United
States circuit court was presented by the defendant to a judge of
the state court in Chambers, and the bond was approved. Before the
petition for removal was filed, the motion for a stay came up, on
October 24, in the state court, and was argued, and a stay was
ordered, the defendant at the same time being relieved from any
default in appearing. The matter of the appeal was not passed upon.
This order was entered on October 26. On November 4, the record was
filed in the United States court.
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.
. 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.
, 185 U. S.
-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
Page 198 U. S. 98
proper to be brought here, in Powers v. Chesapeake &
Ohio Ry. Co., 169 U. S. 92
jurisdiction of this Court must be sustained.
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
106 F. 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. Co., 169 U. S. 92
Kansas City Suburban Belt Ry. Co. v. Herman, 187 U. S.
, 187 U. S. 67
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
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 objections, which still is pressed -- in our
opinion, without ground. Dancel v. Goodyear Shoe Machinery
106 F. 551. The order did not take effect until October
26, Wilcox v. National Shoe & Leather Bank,
App.Div. 466; Hastings v. Twenty-third Ward land Improvement
46 App.Div. 609; Vilas v. Page,
106 N.Y. 439,
It is urged that the petition did not justify removal, because
the allegation that the time has not arrived at which the defendant
was required to answer or plead was an allegation of a conclusion
of law. Allegations which involve such conclusions
Page 198 U. S. 99
import that the facts which justify them are true. Many such
allegations are permitted, to avoid an intolerable prolixity on
matters not likely to be controverted. Haskell v. Merrill,
179 Mass. 120, 123; Alton v. First National Bank of
157 Mass. 341, 343; Commonwealth v. Clancy,
154 Mass. 128, 132; Windram v. French,
151 Mass. 547, 551;
Evans, Pleading, 1st ed. 48, 139, 143-146, 149-157, 164. The facts
appeared of record. When the defendant expected the plaintiff to
demand more than $2,000 is immaterial. The only material point is
when the demand was stated in the case. Assuming the objection to
be open here, if there was any defect, which we do not imply, it
was but a defect of form. Powers v. Chesapeake & Ohio Ry.
Co., 169 U. S. 92
169 U. S.
-101. The presenting of the petition to a judge in
chambers, and the filing of it in the state court, satisfied the
statute. See Noble v. Massachusetts Benefit Association,
48 F. 337. Loop v. Winters,
115 F. 362.
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
consistent with the decisions 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
there has been no valid service the court has no power, and a
distinction is possible between such a case and a mere question
touching the proper limits between equity and law, or the
traditional authority of the court. We leave Shepard v.
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 res
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,
Page 198 U. S. 100
it had power to reopen the matter. It did so, and its action in
that respect is not open to question here. However stringent gent
may be the practice in refusing to reconsider what has been done,
it still is but practice, not want of jurisdiction, that makes the
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.
; Geer v. Mathieson Alkali Works,
190 U. S. 428
arguments do not seem to us to need to be noticed in greater