Donovan v. Wells, Fargo & Co.

• Citation: 169 F. 363
• Decision Date: 05 April 1909
• Docket Number: 2,929.
• Parties: DONOVAN v. WELLS, FARGO & CO.
• Court: United States Courts of Appeals. United States Court of Appeals (8th Circuit)

169 F. 363

DONOVAN v. WELLS, FARGO & CO.

No. 2,929.

United States Court of Appeals, Eighth Circuit.

April 5, 1909

[Copyrighted Material Omitted]

Stephen S. Brown (John E. Dolman, on the brief), for appellant.

Cyrus Crane (Gardiner Lathrop, James P. Gilmore, and George J Mersereau, on the brief), for appellee.

Before ADAMS, Circuit Judge, and RINER and AMIDON, District Judges.

ADAMS Circuit Judge.

A suit at law was instituted by Donovan in the circuit court of Buchanan county, Mo., to recover damages from the Wells Fargo Express Company and Joseph McKee for negligence in the handling of a valuable horse intrusted to the former for transportation from Boston to St. Joseph, Mo. In due time the express company filed its petition, accompanied by the required bond for the removal of the cause into the proper Circuit Court of the United States. It alleged in its petition, among other things, that the plaintiff, Donovan was a citizen of the state of Missouri, and that it, the express company, was a corporation and a citizen of the state of Colorado; that a separable controversy solely between them was involved in the case, and that McKee, a citizen of Missouri, was fraudulently joined as a defendant to defeat the right of the express company to remove the cause into the federal court. The state court denied the prayer of the petition, but notwithstanding that fact the express company, in the exercise of its right under section 3, Judiciary Act Aug. 13, 1888, c. 866, 25 Stat. 435 (U.S. Comp. St. 1901, p. 510), caused a complete copy of the record showing all the proceedings taken in the state court to be filed in the Circuit Court of the United States for the proper district. Donovan failed to file any motion to remand the cause to the state court, or in any other manner to test the question of jurisdiction of the federal court, but prepared for trial and threatened to proceed with the cause in the state court, notwithstanding the removal.

The present bill discloses these facts, and is brought to restrain Donovan from proceeding in the state court. The learned trial court granted the relief prayed for, and this appeal is to secure a reexamination of the question.

Section 3 of the judiciary act, supra, according to its clear import and as uniformly interpreted by the Supreme Court, authorizes the removal of a cause from a state court to the proper federal court upon the filing of a petition disclosing the right to remove and the giving of the prescribed bond. Upon the filing of such petition it becomes a part of the record, and if, on the face of the record so constituted, a suit appears to be removable, the state court in which the petition is filed is bound to surrender its jurisdiction and proceed no further. Such a petition presents for the consideration of the state court a question of law only, whether, assuming the facts stated in the petition to be true, the face of the record discloses a removable cause under the law. Insurance Co. v. Pechner, 95 U.S. 183, 185, 24 L.Ed. 427; Stone v. South Carolina, 117 U.S. 430, 432, 6 Sup.Ct. 799, 29 L.Ed. 962; Carson v. Hyatt, 118 U.S. 279, 287, 6 Sup.Ct. 1050, 30 L.Ed. 167; Carson v. Dunham, 121 U.S. 421, 7 Sup.Ct. 1030, 30 L.Ed. 992; Burlington, etc., Ry. Co. v. Dunn, 122 U.S. 513, 515, 7 Sup.Ct. 1262, 30 L.Ed. 1159; Crehore v. Ohio, etc., Ry.Co., 131 U.S. 240, 244, 9 Sup.Ct. 692, 33 L.Ed. 144; Traction Co. v. Mining Co., 196 U.S. 239, 245, 25 Sup.Ct. 251, 49 L.Ed. 462.

When the right of removal is made to depend upon the existence of certain facts, they must be taken by the state court to be true as averred in the petition. If it is desired to controvert such facts or any of them, the plaintiff must make an issue with respect to them in the federal court, and that issue must be tried in that court. Stone v. South Carolina; Carson v. Hyatt; Railway Co. v. Dunn; Crehore v. Ohio, etc., Ry. Co., supra; Chesapeake & O. Ry. Co. v. McCabe (decided April 5, 1909) 29 Sup.Ct. 430, 53 L.Ed. . . . ; St. Louis Southwestern Ry. Co. v. Adams (Ark.) 112 S.W. 186. If the state court refuses to make the order of removal on the showing made by the face of the record, the defendant may nevertheless, within a prescribed time, enter a copy of the record as it stood, on the filing of the petition, in the proper federal court and have the cause docketed there. Thereupon the latter court is required to proceed in the exercise of the jurisdiction lost by the state court upon the filing of the petition and bond with it. Railroad Co. v. Koontz, 104 U.S. 5, 26 L.Ed. 643; Railroad Co. v. Dunn, supra.

In the light of the foregoing summary of principles which must control the determination of the present case, attention will now be given to the petition for removal in order to see whether it, taken in connection with the full record, disclosed on its face that the express company had the right of removal. If it did, the state court thereby lost jurisdiction of the cause, and its threatened exercise of it was an interference with the jurisdiction acquired by the Circuit Court to which the removal was taken, and, for reasons hereinafter stated, must be enjoined.

The petition and record disclosed, among other things, that the plaintiff Donovan was a citizen of the state of Missouri; that the defendant express company was a citizen for jurisdictional purposes of the state of Colorado; that the matter in dispute exceeded, exclusive of interest and costs, the sum of $2,000, and as a result the cause as between those parties was a removable one according to the provisions of the judiciary act of 1887-88. But as the record disclosed that the defendant McKee was a citizen of Missouri with the plaintiff, the express company's right of removal was lost unless the result of that fact could be overcome.

The recent case of Wecker v. National Enameling Co., 204 U.S. 176, 27 Sup.Ct. 184, 51 L.Ed. 430, involved a question similar to the one now under consideration, and, after discussing the merits of the case, the court said:

'While the plaintiff, in good faith, may proceed in the state courts upon a cause of action which he alleges to be joint, it is equally true that the federal courts should not sanction devices intended to prevent a removal to a federal court where one has that right, and should be equally vigilant to protect the right to proceed in the federal court as to permit the state courts, in proper cases, to retain their own jurisdiction.'

Apparently following the doctrine of that case, the express company undertook in its petition for removal, which was not verified by affidavit, to assail the good faith of the joinder of McKee, and alleged, among other things, that McKee had no participation in any of the negligent acts charged against the two defendants jointly in the complaint, and, in the language of the petition:

'That plaintiff has fraudulently and improperly joined said Joseph McKee as codefendant with your petitioner for the sole purpose of avoiding and defeating the jurisdiction of the courts of the United States and the right of your petitioner to remove this cause to said courts; * * * that the joining of said Joseph McKee by plaintiff as codefendant with your petitioner is not made in good faith for the purpose of determining the question of liability of said McKee to plaintiff, or for the purpose of obtaining a judgment against said McKee, but is a mere pretense and device to oust and defeat the lawful jurisdiction of the courts of the United States.'

Criticism is made of this petition on the ground that it was not verified by the oath of the petitioner, and because the specification of what constituted the fraudulent conduct of Donovan was not sufficient in law to constitute legal fraud. Is the petition sufficient?

The statute does not require verification of the petition, and the Removal Cases, 100 U.S. 457, 25 L.Ed. 593, in recognition of that fact, hold a petition good which was not only not verified but which was otherwise very inartificial and informal.

Section 3 of the judiciary act provides merely that the defendant 'may make and file a petition. ' This petition when so made and filed performs the office in many respects of a pleading. If it fails to state facts sufficient to entitle the petitioner to a removal-- in other words, if it is demurrable on its face-- the state court may properly decline to order the removal, and it will not lose jurisdiction of the cause. But if it is not demurrable-- if the facts, however inartificially stated, disclose the right of removal-- jurisdiction is lost to the state court and is lodged in the federal court. Cases supra.

Tested by well-recognized rules of pleading, the petition for removal was good. It stated the ultimate facts which, in law, entitled the express company to remove the cause, notwithstanding the joinder of McKee. Even if there was a deficiency of detail with respect to what constitutes the alleged fraud, the petition might have been amended in the federal court by making a fuller statement of the facts undertaken to be alleged in the petition; or, in other words, it might have been amended so as to 'set forth in proper form what had before been improperly stated. ' Carson v. Dunham, supra.

As plaintiff Donovan failed to appear in the federal court and deny the allegations of fraudulent joinder, the petition for removal might in due time have been taken as confessed, and the cause have proceeded in the usual course of practice. When issue is joined on allegations of the petition for removal, and not till then, the burden of establishing the affirmative thereof rests upon the petitioner. Judge Dillon in his Removal of Causes, Sec. 158, says:

'If the petition, in connection with the record, is sufficient on

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