Butner v. Neustadter

324 F.2d 783 (1963)


D was temporarily in Los Angeles on business, and was personally served on a suit brought by Neustadter (P) as an assignee on a promissory note. D had ten days to answer. D contacted his attorney in Arkansas, with a name of a California attorney. D attended to the matter, but luck was not on his side during the 10 days. Missed connections and no response from P’s attorney left D on the eleventh day after service with a default judgment. D filed a petition to remove the action to federal court pursuant to 28 U.S.C. § 1446. D answered the complaint in federal court. D alleged that the note had been obtained by fraud and P was not a valid holder. D then filed a motion to set aside the default judgment that had been entered in the state court. The federal court refused, and D appealed. D contends that he is entitled to have the default judgment set aside as a matter of law upon removal to federal district court in that section 1446(b) gives a defendant the right to remove within twenty days after service of process. Rule 12 gives him twenty days within which to appear and plead.