169 U.S. 92 (1898), 144, Powers v. Chesapeake and Ohio Railway Company

Docket Nº:No. 144
Citation:169 U.S. 92, 18 S.Ct. 264, 42 L.Ed. 673
Party Name:Powers v. Chesapeake and Ohio Railway Company
Case Date:January 10, 1898
Court:United States Supreme Court
 
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Page 92

169 U.S. 92 (1898)

18 S.Ct. 264, 42 L.Ed. 673

Powers

v.

Chesapeake and Ohio Railway Company

No. 144

United States Supreme Court

January 10, 1898

Argued December 6-7, 1897

ERROR TO THE CIRCUIT COURT OF THE UNITED

STATES FOR THE DISTRICT OF KENTUCKY

Syllabus

A judgment of the circuit court of the United States against a party contending tat that court has no jurisdiction because the case has not been duly removed from a state court may be reviewed as to the question of jurisdiction by this Court upon writ of error directly to that court under the Act of March 3, 1891, c. 517, § 5.

An order of the circuit court of the United States remanding a case to a state court is not reviewable by this Court.

An action brought in a state court which, by reason of joinder as defendants of citizens of the same state as the plaintiff, is not a removable one under the act of Congress until after the time prescribed by statute or rule of court of the state for answering the declaration may, upon a subsequent discontinuance in that court by the plaintiff against those defendants, making the action for the first time a removable one by reason of diverse citizenship of the parties, be removed into the circuit court of the United States by the defendant upon a petition filed immediately

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after such discontinuance and before taking any other steps in defense of the action.

If sufficient grounds for the removal of a case into the circuit court of the United States are shown upon the face of the petition for removal and of the record of the state court, the petition for removal may be amended in the circuit court of the United States by stating more fully and distinctly the facts which support those grounds.

The right of a party to insist that a case has been duly removed into the circuit court of the United States is not lost or impaired by his making defense in the state court after that court had denied his petition for removal.

[18 S.Ct. 264] This action was brought September 7, 1893, in an inferior court of the State of Kentucky, by Powers against the Chesapeake & Ohio Railway Company as well as against Boyer, Evans, and Hickey, the conductor, engineer, and fireman of a railway train of the company, to recover damages for injuries suffered by the plaintiff from the running of the train against him by the negligence of the defendants. The summons was not served on Hickey, but was served on the other defendants.

The railway company, before its answer was required by the law of Kentucky to be filed, removed the case into the circuit court of the United States upon a petition alleging that the matter in dispute exceeded, exclusive of interest and costs, the sum or value of $2,000; that the railway company was a citizen of the States of Virginia and West Virginia only, and the plaintiff was a citizen of the State of Kentucky; that there was in this suit a separate controversy which could be fully determined as between them, and that the other defendants were fraudulently and improperly joined for the sole purpose of defeating the railway company's right of removal. In the circuit court of the United States, a transcript of the record of the proceedings in the state court was filed, and after a hearing, a motion by the plaintiff to remand the case to the state court was sustained by an opinion filed and entered of record, which stated that the plaintiff was a citizen of Kentucky, and the railway company a citizen of Virginia, and the other defendants were admitted to be citizens of Kentucky, and held that there was no separable controversy

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between the railway company and the plaintiff, and the case was ordered to be remanded accordingly.

The railway company then filed in the state court a transcript of the proceedings in the circuit court of the United States and an answer containing a demurrer, and denying the facts alleged in the original petition and alleging that the other defendants were fellow servants of the plaintiff. A year after the first petition for removal, and when the case was called for trial before a jury in the state court, the plaintiff discontinued his action against the individual defendants. The court overruled the demurrer, and the railway company filed a second petition for removal, like the first except in alleging that, in bringing this suit, Evans and Hickey were fraudulently and improperly joined as defendants for the purpose of defeating the railway company's right of removal; that, because of their joinder, the cause had been remanded to the state court, and that the action, having now been discontinued as against them, was for the first time pending against the railway company alone. The state court denied the petition for removal, and the railway [18 S.Ct. 265] company excepted to the denial. The trial proceeded in that court, resulting in a verdict and judgment for the plaintiff, and the railway company appealed to the court of appeals of the state.

At the next term of the circuit court of the United States, the railway company filed a transcript of the record of the proceedings in the state court. The plaintiff moved to remand the case to the state court upon the grounds that it was not removable under the acts of Congress; that the second petition for removal was not filed within the time fixed by those acts, and that the question sought to be made by the second petition for removal had been already adjudged by the circuit court of the United States, and its former adjudication was a bar to the second proceeding for removal. The railway company (having filed affidavits showing that Boyer and Hickey were citizens of Kentucky, and that the discontinuance of the action as against the individual...

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