#### A. E. BURTON v. S. R. SMITH et al.

(Filed 21 April, 1926.)

1. Actions — Appearance—Summons—Service—Irregularities.

By general appearance in a court of competent jurisdiction the defendant in the action waives all irregularities both as to the summons and service thereof. C. S., 490.

2. Removal of Causes — Judgments Set Aside — Appearance—Pleadings— Statutes — W aiver.

By appearing and moving to set aside a judgment by default rendered, a nonresident defendant upon whom summons by publication had been made, and who brings himself within the provisions of C. S., 492, by moving within a reasonable time after notice, has as a matter of right twenty days from the time such judgment had been set aside, in which to answer or demur, and only requesting or acquiescing in a longer time granted by the court is a waiver of his fight to file a petition and bond for the removal of the cause to the United States Court, under the Federal Statute.

3. Removal of Causes — Courts—Jurisdiction — State Courts — Federal Courts.

The State and Federal Courts have concurrent jurisdiction in controversies between citizens of the State and nonresident defendants, when the amount involved is jurisdictional in the Federal Court, and the nonresident defendant has the election to remove the cause to the Federal Court by moving in apt time under the provisions of the statute, unless the defendant has previously waived his right.

*600 4. Same — Waiver.

Where a nonresident defendant otherwise has the right to have a cause removed from the State to the Federal Court, he may waive it by failing to aptly file a proper petition and bond therefor, as the statute requires, or by his acts and conduct amounting to a recognition of the jurisdiction of the State court wherein the action has been brought.

5. Same — Pleadings.

Where a judgment by default in the State court in an action against a nonresident defendant by a resident plaintiff, wherein summons by publication has been made, has been set aside on defendant’s motion, C. S., 492, the mere fact that the judge has allowed him the statutory time in which to answer or demur, without defendant’s objection, does not call for the exercise of the court’s discretion, and the defendant may therein aptly file his petition and bond for the removal of the cause to the Federal Court as a matter of his legal right.

6. Removal of Causes — Severable Causes.

Where a judgment by default for the want of an answer has been set aside as to a nonresident defendant among other defendants who are residents, against whom no judgment has been rendered, as in this case, the actions will be considered as severable within the meaning of the Federal Removal Act.

Stacy, C. J., dissenting.

Appeal by defendant, S. E. Smith, from order of Daniels, J., at November Term, 1925., of New HaNOvek.

Eeversed.

This action was begun in the Superior Court of New Hanover County on 8 December, 1924, against defendant, S. E. Smith, a nonresident, and his codefendants, some of whom are residents of the State of North Carolina. Summons, returnable to said court, was duly served on S. E. Smith by publication, as provided by C. S., 484; said service was completed on or before the return day, to wit, 19 January, 1925. At February Term, 1925, no answer having been filed to the complaint, filed on 8 December, 1924, judgment by default was duly rendered in favor of plaintiff and against said defendant, in accordance with the prayer of the complaint.

Thereafter, defendant appeared, and upon affidavit duly filed in the cause, moved that said judgment rendered by défault, be vacated and set aside, and that he be allowed to file answer to the complaint and make defense in said action, according to the course and practice of the court. C. S., 492. This motion was heard on 28 September, 1925; the order made thereon is as follows:

“It is now ordered and adjudged by the court that said judgment entered at February Term, 1925, be and the same is hereby vacated and set aside, and that said defendant, S. E. Smith, be allowed to file his answer to the complaint in said action, and that he be allowed twenty days from this date to file same.”

*601Thereafter, and within twenty days from the date of said order, to wit, on 17 October, 1925, defendant, having caused notice to be served on plaintiff, and having filed petition and bond as required by section 29 of U. S. Jud. Code, U. S. Comp. Stat., sec. 1011, moved before the clerk of the Superior Court of New Hanover County, O. S., vol. Ill, sec. 913(b), for an order of removal of this action from the Superior Court of New Hanover County to the District Court of the United. States for the Eastern District of North Carolina for trial. Upon said motion the clerk made the following order:

“This cause coming on for hearing before W. N. Harris, clerk of the Superior Court of New Hanover County, on 17 October, A.D. 1925, on the petition of defendant, S. R. Smith, to remove this action as to said defendant to the United States District Court for and on the grounds recited in the petition, and being heard, and after hearing- full argument of U. L. Spence, Esq., attorney for said defendant, S. R. Smith, in favor of granting said petition, and of A. G. Ricaud, Esq., attorney for plaintiff, against granting same, and it appearing to the court from the record in said cause and from the petition of removal, that said defendant appeared through his attorney, U. L. Spence, before his Honor Frank A. Daniels, judge of the Superior Court, holding the courts of the Eighth Judicial District at Burgaw on Monday, 28 September, 1925, and obtained a judgment vacating and setting aside the judgment by default against the said defendant, S. R. Smith, entered at February Term, 1925, of the Superior Court of New Hanover County, and also asked for and obtained an extension of time to file an answer to the complaint in said cause, all of which fully appears in the judgment rendered therein by Judge Daniels, on said 28 September, and that said defendant consented thereto and entered no exception or objection to the form thereof:

“The court now finds as a legal conclusion and decision that the appearance of said defendant, S. R. Smith, before his Honor, Judge Daniels, at Burgaw, on 28 September, was a general appearance and a voluntary submission to the jurisdiction of the court, and that he thereby waived and abandoned his right of removal to the U. S. District Court, if any such right he had. For the foregoing reasons, the petition of said defendant is denied.”

From this order defendant appealed to the judge holding the next term of the Superior Court of New Hanover County. Upon the hearing of the appeal, the order was affirmed. From judgment affirming the order of the clerk, denying motion for retmoval, defendant appealed to the Supreme Court.

C. D. Weeks and A. Q. Ricaud for plaintiff.

U. L. Spence and Thos. E. Bass for defendant.

*602Connor, 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 *603rights 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 *604of 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 *605as 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 *606to 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.

*607Stacy, C. J.,

dissenting: I£ the defendant, S. R. Smith, ever had any right to remove this suit to the Federal Court for trial after judgment by default was entered against him, which may be doubted, I think he has clearly waived it on the facts of the present record.

In the first place, the right of the nonresident defendant to have the default judgment set aside comes froin C. S., 492, which provides that, where service is obtained by publication, the defendant may, 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. There is nothing in this statute which allows the defendant twenty days to answer after the judgment is set aside; and he is not entitled, as a matter of right, to have the judgment vacated, except “upon good cause shown”; and then he is permitted to defend “on such terms as are just.” Page v. McDonald, 159 N. C., 38; Turner v. Machine Co., 133 N. C., 381.

The case of Harter Township v. Kernochan, 103 U. S., 562 (26 L. Ed., 411), is not a controlling authority for the defendant’s position in the case at bar, for in the Kemochan case the Supreme Court of the United States was dealing -with a statute of Illinois which is different from ours in that it provides: “The person so petitioning may appear and answer the complainant’s bill; and, thereupon, such proceedings shall be had as if the defendants had appeared in due season and no decree had been entered.” Thus the two statutes under consideration, the one in the Kemochan case and the one here, are quite dissimilar. There is no provision in our statute that when a default judgment is vacated, such proceedings shall then be had as if the defendant had appeared in due season before the judgment was taken. This distinguishes the two cases.

But conceding that the defendant’s right to defend under our statute has been construed to be absolute, and not discretionary with the judge, still he may waive the right to have the cause removed to the Federal Court for trial by any act which clearly shows an election on his part not to avail himself of such right. Dills v. Fiber Co., 175 N. C., 51; Patterson Lumber Co., ibid., 92.

A defendant may by his conduct estop himself from contesting the jurisdiction of the State court. Bank v. Lumber Co., 52 Fed., 897; Guano Co. v. Ins. Co., 60 Fed., 929; Schipper v. Cordage Co., 72 Fed., 803; Note, 26 Ann. Cas., 1337; 23 R. C. L., 614.

And this is but just, for “by the exercise of the right of removal, the petitioner refuses to permit the State court to deal with the case in any way, because he prefers another forum to which the law gives him the right to resort.” Wabash Western Ry. v. Brow, 164 U. S., 271, 41 L. Ed., 431.

*608Animadverting on bow tbe defendant may waive bis right of removal, Judge Bose, in bis valuable work on Federal Procedure, sec. 374, p. 325, says:

> “On tbe other band, as it is a mere right of tbe parties, and under tbe present statute, a right confined to tbe defendant, be can exercise it or not as be sees fit. He may so act as to show that be has elected not to do so. This election be will conclusively evidence by not making bis motion within tbe time limited by law. It is easy to conceive of many other ways in which even before tbe expiration of tbe time in which be must exercise this right be may so act as to estop himself from so doing, upon tbe theory that what be has done shows that be has agreed not to avail himself of it.”

Tbe defendant made bis initial appearance in tbe instant suit 27 April, 1925, by giving notice to tbe plaintiff and bis counsel that on 11 May following be would lodge a motion before tbe judge bolding tbe Superior Court of New Hanover County, in tbe courthouse at Wilmington, N. C., to set aside and vacate tbe default judgment taken against him at tbe February Term, 1925, of said court, “and for an order allowing said defendant to file answer to tbe complaint,” upon tbe ground that tbe judgment was irregularly entered and taken without due process of service, “tbe facts with reference thereto being as set forth in tbe affidavit of tbe said S. R. Smith hereunto attached.” Accompanying said affidavit, and as a part thereof, was tbe defendant’s answer which be proposed to file so that be might “make defense in said action according to tbe course and practice of tbe court,” as prayed for in bis affidavit.

This motion was not beard in New Hanover County at all, but by consent (Gaster v. Thomas, 188 N. C., 346), tbe matter was continued to be beard in chambers at Burgaw, Pender County, 28 September, 1925, when and where tbe judge entered an order vacating tbe judgment and allowing tbe defendant, S. R. Smith, at bis request, twenty days within which to file answer to tbe complaint; and it was further agreed at that time by counsel for plaintiff and defendant “that tbe court might enter its judgment on said motion without finding tbe facts thereon.”

In Case v. Olney, 106 Fed., 433, tbe defendant filed a demurrer in tbe State court and made an agreement as to when it should be beard; later be sought to remove tbe cause to tbe Federal Court: Held, that tbe right to remove bad been waived. Quoting from Frink v. Blackinton, 80 Fed., 307, tbe Court said: “Moreover, in view of tbe delays in litigation arising unavoidably from tbe right of removal, tbe construction of doubtful provisions should be in favor of requiring tbe greatest diligence from parties exercising that right.”

*609In the judgment of the clerk, refusing the motion to remove, and which was affirmed by the judge of the Superior Court, it is found as a fact that the defendant “asked for and obtained an extension of time to file an answer to the complaint,” which was allowed and “the defendant consented to the judgment and entered no exception or objection to the form thereof.”

This was a voluntary submission by the defendant to the jurisdiction of the State court and a waiver of the right to remove. Ford v. Lumber Co., 155 N. C., 352; Bryson v. R. R., 141 N. C., 594; Howard v. R. R., 122 N. C., 944.

Speaking to a similar situation in Pruitt v. Power Co., 165 N. C., 416, Clark, C. J., said: “The entering into the stipulation for an extension of time to file the answer, which was duly approved by the judge, was a general appearance in the State court and waived the right to remove. It was an acceptance of the jurisdiction of the State court.”

I think the judgment of the Superior Court is correct and that it should be affirmed.