Stanley v. Chicago, Rock Island & Pacific R.R. Co.

• Citation: 62 Mo. 508
• Parties: DAVID T. STANLEY, Respondent, v. THE CHICAGO, ROCK ISLAND AND PACIFIC RAILROAD CO., Appellant.
• Decision Date: 31 May 1876
• Court: United States State Supreme Court of Missouri

62 Mo. 508

DAVID T. STANLEY, Respondent,

v.THE CHICAGO, ROCK ISLAND AND PACIFIC RAILROAD CO., Appellant.

Supreme Court of Missouri.

May Term, 1876.

Appeal from Mercer Circuit Court.

Shanklin, Low & McDougal, for Appellant.

I. The plaintiff could not defeat defendant's right to have the cause removed into the circuit court of the United States by amending his petition so as to reduce the claim below the jurisdiction of a circuit court of the United States. (Kanouse vs. Martin, 15 How. [U. S.], 198; Ladd vs. Tudor, 3 Woodb. & Minot, 325: Roberts vs. Nelson, 8 Blackf., 74; Hereford vs. Ætna Ins. Co., 42 Mo., 148.)

II. The defendant did not waive his right to have the cause removed by appearing and going to trial. (Gordon vs. Longest. 16 Pet., 97; Hereford vs. Ætna Ins. Co., 42 Mo., 148.) Under the laws existing prior to the act of 1875, appeal to State Supreme Court was the only remedy when the State court refused to grant petition for removal. (Hough vs. Western Trans. Co., 1 Biss., 425.)C. M. Wright, for Respondent.

I. The amount claimed in the petition is presumptively the amount in dispute, but the presumption is not conclusive, and plaintiff may prevent a removal by amending his petition so as to reduce the claim. (People vs. New York, C. P., 2 Den., 197; Disbrow vs. Driggs, 8 Ab. Pr., 305 note.)

HOUGH, Judge, delivered the opinion of the court.

The plaintiff brought suit against the defendant in the circuit court of Mercer county, claiming damages in the sum of $1,020. The defendant appeared to the action, and on the 5th day of November, 1874, and before filing an answer, presented to the court a petition, affidavit and bond, praying for a removal of the cause into the circuit court of the United States for the western district of Missouri, under the act of congress of July 27, 1866, as amended by the act of March 2, 1867, and alleging that the plaintiff was a citizen of the State of Missouri, and that the defendant was a corporation organized and existing under the laws of the States of Illinois and Iowa, having its principal place of business in Chicago, in the State of Illinois, and was a citizen thereof; that the amount in controversy exceeded the sum of five hundred dollars, and that the affiant had reason to believe, and did believe, that from prejudice and local influence of the plaintiff the defendant would not be able to secure justice in said Mercer circuit court.

The plaintiff thereupon asked and obtained leave of the court to amend his petition, and on the succeeding day filed an amended petition, claiming only four hundred and eighty dollars damages.

The defendant's application for change of forum was then refused, and the cause proceeded to trial in the circuit court, where judgment was rendered for the plaintiff, and the defendant has brought the case here by appeal.

No objection was made to the form of the application, or the facts on which it was founded, nor was the sufficiency of the bond questioned.

While the application was made in November, 1874, the removal was asked under the provisions of the act of July 27, 1866, as amended by the act of March 2, 1867--statutes which had been repealed by the adoption of the Revised Statutes of the United States on the 22d day of June, 1874. The substantial provisions of these acts, however, were incorporated in section 639 of the Revised Statutes, and are as follows:

“Any suit commenced in any State court, wherein the amount in dispute, exclusive of costs, exceeds the sum or value of five hundred dollars, to be made to appear to the satisfaction of said court, may be removed, for trial, into the circuit court for the district where such suit is pending, next to be held after the filing of the petition for such removal, hereinafter mentioned, in the cases and in the manner stated in this section.”

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Third. “When a suit is between a citizen of the State in which it is brought, and a citizen of another State, it may be so removed on the petition of the latter, whether he be plaintiff or defendant, filed at any time before the trial or final...