Williams v. New York, P. & NR Co.

• Citation: 45 ALR 437,11 F.2d 363
• Decision Date: 12 January 1926
• Docket Number: No. 2377.,2377.
• Parties: WILLIAMS et al. v. NEW YORK, P. & N. R. CO.
• Court: United States Courts of Appeals. United States Court of Appeals (4th Circuit)

45 ALR 437, 11 F.2d 363 (1926)

WILLIAMS et al. v. NEW YORK, P. & N. R. CO.

No. 2377.

Circuit Court of Appeals, Fourth Circuit.

January 12, 1926.

James E. Heath, of Norfolk, Va. (S. James Turlington, of Accomac, Va., on the brief), for plaintiffs in error.

George R. Allen, of Philadelphia, Pa. (Thomas H. Willcox, of Norfolk, Va., on the brief), for defendant in error.

Before WADDILL, ROSE, and PARKER, Circuit Judges.

ROSE, Circuit Judge.

In the circuit court for Northampton county, Virginia, the plaintiffs in error sued the defendant in error to recover $50,000 as damages for the defendant's tardiness in furnishing cars to carry plaintiffs' potatoes from various Virginia stations to places outside of that state. Upon defendant's petition the case was removed to the court below and there tried, the verdict and judgment being for the defendant.

It is unnecessary now to consider such of plaintiffs' assignments of error as relate to anything which happened at the trial, for it is clear that in any event they were not entitled to recover. The applicable Interstate Commerce Commission tariff provided that "orders for cars desired for loading must be * * * given in writing, or, if given orally or by telephone, must be confirmed in writing," and none of those of the plaintiffs were either so given or confirmed. The learned judge below held that the defendant by its course of dealing with its shippers had waived the requirement. Less than six weeks later the Supreme Court decided that such a rule could not be waived. Davis v. Henderson, 45 S. Ct. 24, 266 U. S. 92, 69 L. Ed. 182. Even so, the plaintiffs insist they are entitled to a reversal, because their motion for a remand to the state court should have been granted, and was not. They argue that the case was not a removable one, and that, if it had been, one of the steps essential to removal was never taken. Of these in their order.

The case was removed because it was said to arise under a law of the United States. Plaintiffs say it did not and give three reasons: First. The declaration did not show a right of action under any law, state or federal. If so, no harm has been done, for plaintiffs are now out of court, where this contention assumes they always should have been. Second. The wording of the declaration does not absolutely negative the possibility that the potatoes might have been shipped over routes to which the Hepburn Amendment (34 Stat. 584) did not apply. As we do not agree that any such construction of the declaration is justified, no good purpose will be served by setting forth the ingenious, but, as we think, highly artificial, reasoning by which plaintiffs seek to sustain it. Third. A shipper, if he chooses, may ignore the Hepburn Act, even where it in terms applies, and bring his suit at common law. This contention is in the teeth of what was said in Chicago, R. I. & P. R. Co. v. Hardwick Elevator Co., 33 S. Ct. 174, 226 U. S. 426, 57 L. Ed. 284, 46 L. R. A. (N. S.) 203 and may not be sustained here.

Lastly, they say that, even assuming the case was a removable one, it was not properly removed, because the petition and bond were not submitted to the judge of the state court. What actually happened may be briefly stated. On the 30th of September, 1921, the attorney for the plaintiffs admitted service upon him of a written notice from the defendant that at 4:30 in the afternoon of October 4th it would submit to the circuit court for Northampton county, at the court-house at Eastville, a petition and bond for removal of the case to the District Court of the United States for the Eastern District of Virginia, and would immediately thereafter file them in the clerk's office of the circuit court. On the day named in the notice the petition and bond were filed in such office. It was not presented to the judge of the court, as he was at the time out of the county and state, being ill at the Johns Hopkins Hospital in Baltimore. He returned to his home in Northampton county somewhere between the 7th and the 14th of the month, but neither he nor any other judge held any court therein at any time in that October. Apparently, on the 6th of the month, the clerk of his court made up a transcript of the record which was then or shortly thereafter filed in the United States court. So soon as the state court judge got back from Baltimore, one of the attorneys of the defendant went to see him at his home, and told him that he had filed the petition and bond for removal, to which the judge replied that, if they were in proper form, it was all right.

Section 12 of the Judiciary Act of September 24, 1789 (1 Stat. 79), provided that a defendant who sought a removal should file a petition for it and give surety for his entering the record in the federal court, and then said: "It shall * * * be the duty of the state court to accept the surety, and proceed no further in the cause." It added that when the record was entered in the United States court, the cause should proceed as if it had been there brought by original process. So the statutes still read, except that for the last half century; that is to say, since the enactment of the third section of the Act of March 3, 1875, 18 Stat. 471, the state court is required to "accept" the "petition" as well as the surety or bond.

So far as our researches go, the question with which we are now concerned never arose in any reported case until after the passage of the last mentioned statute. Judge Drummond in his able opinion in Osgood v. Chicago, D. & V. R. Co., 18 Fed. Cas. 876, 880, No. 10,604, was probably right in supposing that it had not, because until 1866 a defendant seeking to remove was required to file his petition and tender his surety at the time of entering his appearance in the state court, and then the court would ordinarily be in session. Judge Drummond thought that the act of 1875 expressly authorized the filing of the petition and bond out of term time and when the judge of the state court might be inaccessible. A number of his judicial brethren were quite as clear that it did not. Thus, for example, Judge Coxe held that the petition and bond were not effectually filed unless and until they were submitted to the judge of the court when sitting as such, and that a presentation to him during vacation or at chambers was not enough.

After Remington v. Central Pacific Railway Co., 25 S. Ct. 577, 198 U. S. 95, 99, 49 L. Ed. 959, that particular controversy was closed. In that case the petition and bond had been submitted to the state judge, so that all the Supreme Court was called upon to say was that the presenting of the petition to a judge in chambers and the filing of it in the state court satisfied the statute. The judges who insist that there must be some presentation other than the mere filing in the clerk's office have since quoted this language in support of their view (Mays v. Newlin C. C. 143 F. 574, 576), while those of the other mind call attention to the fact that in that very connection Justice Holmes cited with approval Noble v. Massachusetts Beneficial Association (C. C.) 48 F. 337, in which Judge Wallace had said: "The statute * * * does not require the removing party to present his petition or bond to a judge, either in vacation or in open court, but is satisfied when he files them with the official custodian of the records of the court."

In 1910 and 1911 Congress was engaged in recasting and codifying in the Judicial Code many of the statutes defining and regulating the jurisdiction and procedure of the federal courts, including those regulating removals. By that time the controversy with which we are concerned had been going on for 35 years. A few words in section 29 of the draft code would have ended it. They were not inserted.

The federal courts of first instance are hopelessly divided on the question, and the text-writers are not of one mind. Among the cases which hold that a removal cannot be validly affected without submitting the petition and bond to a judge of the state court, and that mere filing in the clerk's office is not enough, may be mentioned: Scott v. Otis, 21 Fed. Cas. 846, No. 12,543; Shedd v. Fuller (C. C.) 36 F. 609; Roberts v. Chicago, St. Paul, Minneapolis & Omaha Ry. Co. (C. C.) 45 F. 433; Williams v. Massachusetts Beneficial Association (C. C.) 47 F. 533; Hall v. Chattanooga Agricultural Works (C. C.) 48 F. 599; Kinne v. Lant (C. C.) 68 F. 436, 438; La Page v. Day (C. C.) 74 F. 977; Fox v. Southern Ry. Co. (C. C.) 80 F. 945, 948; Mays v. Newlin (C. C.) 143 F. 574; Lee v. Continental Insurance Co. (D. C.) 292 F. 409. Mr. Moon, in his book on the Removal of Causes, § 177, p. 494, has expressed himself as of the same opinion.

The contrary view has been taken in Osgood v. Chicago, D. & V. R. Co., 18 Fed. Cas. 876, 880, No. 10,604; Brown v. Murray, Nelson & Co. (C. C.) 43 F. 614; State v. Coosaw Mining Co. (C. C.) 45 F. 804, 811; Noble v. Massachusetts Beneficial Association, supra; Wills v. Baltimore & O. R. R. Co. (C. C.) 65 F. 532; Eisenmann v. Delemar's Nevada Gold Mining Co. (C. C.) 87 F. 248; Hansford v. Stone-Odean-Wells Co. (D. C.) 201 F. 185; Frazier v. Hines (D. C.) 260 F. 874. Ex-Senator Lewis, in his recent work on Removal of Causes, aligns himself with these latter authorities, saying "that, although it has been the practice in many federal courts for many years not to consider any motion in the cause until an application has been made in the state court for an order to remove it to the federal court, the general rule of law undoubtedly is that, if the case be a removable one, the mere filing of a bond and petition in the state court removes the case." Lewis on Removal of Causes, § 274.

Admittedly the point in dispute is a narrow one. All agree that if the case be removable, and if the petition and bond are in proper form, and have been filed in due season after due written notice has been given the other side that they will be and have been...