McAlister v. Chesapeake & O. Ry. Co.

• Decision Date: 11 December 1907
• Docket Number: 1,666.
• Parties: McALISTER v. CHESAPEAKE & O. RY. CO.
• Court: U.S. Court of Appeals — Sixth Circuit

157 F. 740

McALISTER v. CHESAPEAKE & O. RY. CO.

No. 1,666.

United States Court of Appeals, Sixth Circuit.

December 11, 1907

A. D Cole, for appellant.

Before LURTON, SEVERENS, and RICHARDS, Circuit Judges.

RICHARDS Circuit Judge.

This is an appeal from a decision enjoining the appellant, the plaintiff in a suit instituted in a state court of Kentucky against the appellee and another defendant, which was removed by the appellee to this court, from further prosecuting it in the state court. The original suit was brought in the circuit court of Greenup county, Ky., for the wrongful death of A. J McAlister, who was run against and killed by one of the trains of the Chesapeake & Ohio Railway Company. The Maysville & Big Sandy Railroad Company was joined as a defendant, on the ground that it owned the track and leased the same to the Chesapeake & Ohio Railway Company to operate. The accident occurred at a place in the town of Fullerton Ky., not particularly described. The original petition charged joint negligence against the two railroad companies the lessee and lessor, and the conductor, engineer and fireman of the train; but, while blanks were left, the latter were never named or sued. The petition avers the deceased was struck at a place where numerous people were accustomed to be and travel, and while in plain view of the employes operating the train, and while it was running at the excessive speed of 50 miles an hour, and without any proper notice or warning of its approach, and without any adequate lookout. An amendment to the petition avers that the deceased, when struck, 'was at or near the public crossing' in Fullerton; but, since a pleading must be construed most strongly against the pleader, the inference follows that he was not struck on the crossing, but 'near' it, and therefore was a trespasser. Davis' Adm'r v. C. & O. Ry. Co., 75 S.W. 275, 25 Ky.Law Rep. 342, 346. Subsequently, and in due time, a petition for removal to the court below, with a transcript and sufficient bond, was filed. The petition was based on the ground that there was a controversy in the suit between the plaintiff, a citizen of Kentucky, and the Chesapeake & Ohio Railway Company, a citizen of Virginia, and that the codefendant, the Maysville & Big Sandy Railroad Company, a citizen of Kentucky, was not a necessary party to the cause, that it was wrongfully and fraudulently made a defendant for the sole purpose of preventing a removal of the case to this court and a trial here, with no intention to prove any of the acts of negligence alleged against this codefendant, or to prosecute the alleged cause of action against it, such corporation having no property in Kentucky subject to execution, and the petitioner being solvent. The petition states that the original pleadings stated no cause of action against the codefendant, which leased its entire line of railroad to the Chesapeake & Ohio Railway Company before 1890. After the removal of the cause in this manner, no effort was made by the plaintiff in the state court to remand the case to such court, the removal being treated as without authority and void, and the case was set for trial in the state court, the attorneys for the plaintiff in that court stating that they had no intention to appear in the court below to urge a remand. To prevent a trial in the state court the present suit was instituted, a temporary injunction ordered made, and, after pleadings and a hearing, an injunction as prayed for was granted.

The opinion of the court below discusses whether the suit was removable or not, and in this connection whether any cause of action in favor of the Maysville & Big Sandy Railroad Company was stated in the petition and amended petition in the state court, and also whether the proper steps had been taken in due time to remove the suit to this court. The conclusion reached was that there was no cause of action against the Maysville & Big Sandy Railroad Company stated, and that proper steps had been taken to remove the suit. Wherefore, acting upon the authority of the case of Madisonville Traction Company v. St. Bernard Mining Company, 196 U.S. 239, 25 Sup.Ct. 251, 49 L.Ed. 462, the plaintiff was enjoined from prosecuting the case further in the state court.

In the case of Traction Co. v. Mining Co., 196 U.S. 239, 240, 25 Sup.Ct. 251, 49 L.Ed. 462, Mr. Justice Harlan, who , said it is well settled, citing many cases, that if, upon the face of the record, including the petition for removal, a suit does not appear to be a removable one, then the state court is not bound to surrender its jurisdiction, and may proceed as if no application for a removal had been made. But it is to be observed that the state court does this at its peril. If it proceed to try the case and render judgment, and error is prosecuted through the highest court of a state to the Supreme Court of the United States, and the latter hold that the state court took an erroneous view and the case was a removable one, it may adjudge all the proceedings in the state court, after the refusal to remove, null and void, and may order the case to be remanded for removal to the proper court of the United States and for trial there. Steamship Co. v. Tugman, 106 U.S. 118, 123, 1 Sup.Ct. 58, 27 L.Ed. 87; Insurance Co. v. Dunn, 19 Wall. 214, 22 L.Ed. 68;

Railroad Co. v. Mississippi, 102 U.S. 135, 26 L.Ed. 96. Or, as Mr. Justice Harlan puts it, in the Traction Company Case, citing many authorities for the proposition, if the case be a removable one, then upon the filing of the petition for removal, in due time, with a sufficient bond, the case is in law removed, and the state court in which it is pending will lose jurisdiction to proceed further, and all subsequent proceedings in that court will be void.

Such being the case and the law, the question presented to the court below, since the state court retained the case and seemed disposed to try it, although the petition for removal and the bond had been filed in due time, was whether that court should be permitted to try the case, and without any attempt having been made to remand it, or to submit to the court below any reasons for remanding it; in other words, without the court below having had any opportunity to hear and determine the question which we think is properly one for it, namely, whether the case had been lawfully removed. The removal act--Act March 3, 1875, c. 137, Sec. 3, 18 Stat. 470 (U.S. Comp. St. 1901, p. 510), as amended in 1887 (Act March 3, 1887, c. 373, 24 Stat. 553) and 1888 (Act Aug. 13, 1888, c. 866, 25 Stat. 435 (U.S. Comp. St. 1901, p. 582))-- provides that it shall be 'the duty of the state court,' after the petition and bond have been duly filed, as was done in this case, 'to accept said petition and bond and proceed no further in said suit. ' And later the same section provides that the Circuit Court of the United States shall then proceed in the cause 'in the same manner as if it had been originally commenced in said Circuit Court.'

The proper method of preventing these results of a removal, is by exercise of the power given by the fifth section of the same act, wherein it is provided that if, in any suit removed from a state court, 'it shall appear to the satisfaction of said Circuit Court that such suit does not really and substantially involve a dispute or controversy properly within the jurisdiction of said Circuit Court,' the Circuit Court shall proceed no further therein, but shall dismiss the suit or remand it to the court from which it was removed. Obviously this provision leaves the determination of the question whether the suit had been properly removed to the Circuit Court upon a motion to remand.

If the case is remanded, the action of the Circuit Court is final; but, if the court shall refuse to remand, its action may be reviewed by the higher courts of the United States. Ultimately it will be observed the action respecting removal, whether made by the state or the federal court, unless the case is remanded by the latter, can be reviewed by the Supreme Court of the United States. Therefore it would seem, in view of the provision respecting a remand by the Circuit Court, that if there be a difference of opinion between the state and the federal court, and each is disposed to maintain its jurisdiction and try the case, although removed from the former to the latter, that an injunction may be properly used to settle, at least for the time being, the question of jurisdiction and determine which court has the right to try the case, instead of allowing both to put themselves to the needless trouble of separately trying it. In the case we have cited several times, the Traction Company Case, Mr. Justice Harlan cites a number of cases as authority for the use of an injunction to restrain a party from taking further steps in a state court after a case has been removed to a court of the United States. In addition, an injunction was granted by Judge Jackson in B. & O.R.R. Co. v. Ford (C.C.) 35 F. 170, and by Judge McCormick in Abeel v. Culberson (C.C.) 56 F. 329, although refused by Judge Love in Wagner v. Drake, etc. (D.C.) 31 F. 849, and by Judge Putnam in Sinclair v. Pierce (C.C.) 50 F. 851. The decision in each case seems to turn upon the court's estimate of the convenience of the remedy by injunction which was sought.

A case for removal was stated on the face of the petition for removal. The question as to whether the ...