
    PETERSON v. CHICAGO, M. & ST. P. RY. CO.
    (Circuit Court, W. D. Missouri, W. D.
    May 6, 1901.)
    1. Pleading — Amendment of Petition— Missouri Statute.
    Rev. St. Mo. 1899, § 661, which provides that “a petition or answer may be amended by the proper party, of course, * * * at any time before the answer or reply thereto shall be filed,” contemplates that such amendment shall be made in open court, or if in vacation by leave of court, and does not authorize a plaintiff to amend his petition in vacation before the return day of the summons; nor is such authority conferred by section 638, which merely provides that any party filing an amended pleading in vacation shall give written notice of the time of filing the same to the adverse party or his attorney.
    2. Game — Notice of Amendment — Service on Attorney.
    A statutory provision requiring notice of the filing of an amended pleading to be given to the adverse party “or his attorney” requires such service either upon the party or his attorney of record in the cause, and notice of the filing of an amended petition in vacation, before the return day of the summons, is not given, under such a provision, to a defendant who has not entered his appearance, by its service upon an attorney, although such attorney may thereafter appear for defendant in the cause.
    3. Removal of Causes — Amount in Controversy — Amf,ndmknt of Petition.
    An action to recover damages in the sum of ?10,00<> was brought in a state court of Missouri in vacation, and summons, together with a copy of the petition, as required by statute, was served on defendant. Before the next term of court to which the summons was returnable, plaintiff filed with the clerk an amended petition in which he prayed judgment for less than 82,000. Such amendment was not authorized by statute, nor was notice of its filing served on defendant as required when an amendment was properly filed in vacation. Held, that it was ineffectual to reduce the amount in controversy so as to prevent the removal of the cause ' on a petition filed on the return day by defendant, which, was a nonresident of the state.
    
    On Motion to Kemand to State Court.
    Scott J. Miller, for plaintiff.
    Chas. A. Loomis, for defendant.
    
      
       Jurisdiction of circuit courts as affected by amounts iu controversy, see notes to Auer v. Lombard, 19 C. C. A. 75; Shoe Co. v. Roper, 36 C. C. A. 459.
    
   PHILIPS, District Judge.

On the 24th day of November, 1900, the original petition was filed in this cause in the clerk’s office of the circuit court of Livingston county, in which the suit was instituted. This, of course, was in vacation of court. The summons was returnable to the next term of court, which convened on the 14th day of January, 1901.. Judgment was asked for $10,000. On the 8th day of January, 1901, in vacation, and before the return day of the writ of summons, the plaintiff filed in the clerk’s office of said court what purports to be an amended petition, in which the amount of the judgment prayed for is $1,999. On the first day of the regular term of court to which the cause of action was returnable, the defendant appeared, and filed its application, as a nonresident defendant, for a removal of the cause from the state circuit court to this court, Avhich application was granted, and the cause is now docketed in this court.

Tbe plaintiff bas filed a motion to remand, based upon tbe contention that tbe amended petition so filed in vacation before tbe return day of tbe writ supplanted tbe original petition, and was tbe only cause of action pending in tbe state circuit court at tbe time of tbe removal, and therefore tbe amount in controversy is less than $2,000, and this court is without jurisdiction over tbe subject-matter. In support of this contention plaintiff relies upon section 661 of tbe Revised Statutes of Missouri of 1899, which reads as follows:

“A petition or answer may be amended by tbe proper party, of course, without costs and without prejudice to the proceeding already had, at any time before the answer or reply thereto shall be filed.”

It is observable that this section makes no provision for making such amendment in vacation, and especially none before tbe return day of the writ. It is claimed, however, by plaintiff’s counsel that tbe authority for tbe course pursued is found in section 638 of tbe statute, which reads as follows:

“The party filing any replication, answer or amended or supplemental pleading, in vacation, shall give written notice of the time of filing the same to the adverse party, or his attorney; and until such notice is duly served, such adverse party shall not be deemed to have had notice thereof, for the purpose of pleading.”

It is again to be observed that this section does not expressly confer upon tbe plaintiff tbe right to amend bis pleading in vacation, of his own motion, simply by filing an amended petition in tbe clerk’s office, but only provides that, when any such pleading is fildd in vacation, notice thereof shall be given to tbe adverse party or bis attorney. It will be found, on examination of tbe cases arising under this section of tbe practice act, that the instances arose where a party during term time bad taken leave to file an amended pleading in vacation. In such case tbe statute imposes upon him tbe obligation of notifying tbe adverse party or bis attorney of having availed himself of the leave obtained in term time, as be might or might not, at bis pleasure, avail himself of tbe leave obtained from the court to file such pleading; and, without requiring tbe adversary to go to tbe clerk’s office to ascertain whether the party had availed himself of tbe privilege accorded by tbe court, tbe .statute makes it bis duty to give notice of the filing of tbe amended pleading in vacation, so that tbe adversary may take notice thereof and make preparation for meeting tbe new pleading. I find no instance in tbe reported cases, nor have I ever known in practice, of tbe plaintiff, between tbe day of tbe summons on a petition filed in vacation and tbe return day thereof, filing an amended petition with tbe clerk, and requiring tbe defendant to plead thereto. Tbe notice of tbe amended petition in this case was served, not upon tbe defendant railroad company, but upon Mr. Loomis, who was one of tbe attorneys who usually represented tbe defendant in court in suits against it in his locality. I take it that tbe meaning of tbe statute in providing that service of notice may be made on the defendant’s attorney is tbe attorney of record, and until the return day of the. summons it could not be known who would be tbe attor-nev of record of the defendant, — a fact wliicli could be authenticated by the court docket in, the event of an amended pleading filed in vacation by leave of court taken after the return day of the writ. Hinco this motion was submitted, plaintiff's counsel calls the court's attention to the fact that the petition for removal is sworn to by Mr. Loomis, who describes himself as attorney for the defendant in this suit, and that this affidavit was made on the 12th day of January, 1901. The fact, however, remains that the notice of the -filing of the amended petition was served upon Mr. Loomis on the 9th. day of January, 190.1, three days prior to any proper evidence of his attorneyship in this case; and, until his appearance was entered in court as attorney for the defendant, there was no evidence of his being attorney in this case when the notice was served upon him. The notice had by an attorney prior to his appearance as attorney in the case is not imputable to the client for whom he afterwards appears.

Beetion 674 of said statute requires that “no process, pleading' or record shall be amended or impaired by the clerk or other officer of the court, or by any person, without the order of such court, or of some court of competent authority.” The primary purpose, doubtless, of this provision may be said to prevent the clerk or any officer of the court or any other person from amending or changing a pleading- after it has been filed, without leave of the court. But it is a universally recognised rule of procedure that, before an amended pleading can he filed in a cause after the institution of a suit, leave of court thereto is asked. And while, under section 661, the plaintiff has a rigid, to amend his petition “of course” before the answer shall be filed, it must he done in open court, or, if he is not ready at the return term of the writ to file his amended petition, he may obtain leave of court to file the same in vacation. If the right to amend the pleading in vacation exists, without: leave of court, merely by giving notice thereof to the adverse party, the party might do so by interlineation or by supplemental averment added thereto, which certainly would he a violation of the provision of said section 674. Section 661, which declares that “a petition may he amended by the proper party, of course,” does not prescribe that it shall be by substitution of the petition, nor as to the manner of the amendment. As the practice act, in my judgment, contemplates the making of such amendments in open court, or, by leave of court in vacation, the manner of the amendin'ul, -whether by interlineation or supplemental averment, or wholly by substituted petition, is a matter of discretion with the court. Beetion 566 prescribes how the suit shall be instituted in courts of record:

“By filing in the office of the clerk of the proper court a petition.” etc., “and l>y 1l>e voluntary appearance of the ailvwse party thereto; or hy filing such petition iu such office and suing out thereon a writ of summons against the person.” etc. “The thins of a petition in a court of record, and the suing out of process therein, shall Tie taken and deemed the commencement of a suit.”

Thereupon a writ, of summons shall issue, with a copy of Hie petition, which is to be served upon the defendant. It is this pet ilion which the defendant is called upon to appear at the return day of the summons and answer.. There • is and can be no other cause of action pending against him prior to the return day of such writ of summons, to which he is required to appear and plead. Under the contention of plaintiff’s counsel, within the 15 days after the service of the petition upon the defendant he could go to the clerk’s office, day after day, and amend his petition as often as he pleased, and call the defendant into court simply by notice of the fact of another amended petition, even without serving a copy thereof on the defendant.

When the return day of the summons in this case transpired, the only legal notice the defendant company had of the institution of the suit against it was the service of the writ of summons, with a copy of the petition. It was not bound by the notice given to Mr. Loomis, who was not the attorney of record for the defendant in the case. No amended petition had been filed in the court when the defendant made its application for the removal of this cause. The matter in controversy in the suit instituted by the plaintiff to which the defendant was summoned to answer was a judgment prayed for for $10,000. This was the only action properly pending against the defendant at the time the cause was removed to this court. The so-called amended petition was not then filed in court, and could not be filed therein thereafter, as the state circuit court lost jurisdiction of the cause the moment the defendant complied with the provisions of the federal statute entitling it to the order of removal. The motion to remand is denied.  