Chicago, RI & PR Co. v. Stude

• Citation: 204 F.2d 954
• Decision Date: 17 June 1953
• Docket Number: No. 10724-10726.,10724-10726.
• Parties: CHICAGO, R. I. & P. R. CO. v. STUDE et al. STUDE v. CHICAGO, R. I. & P. R. CO. STUDE et al. v. CHICAGO, R. I. & P. R. CO.
• Court: United States Courts of Appeals. United States Court of Appeals (8th Circuit)

204 F.2d 954 (1953)

CHICAGO, R. I. & P. R. CO. v. STUDE et al.

STUDE v. CHICAGO, R. I. & P. R. CO.

STUDE et al. v. CHICAGO, R. I. & P. R. CO.

Nos. 10724-10726.

United States Court of Appeals Eighth Circuit.

June 17, 1953.

A. B. Howland, Des Moines, Iowa (R. L. Read and B. A. Webster, Jr., Des Moines, Iowa, were with him on the brief), for Chicago, R. I. & P. R. Co.

Raymond A. Smith, Council Bluffs, Iowa, and Harold W. Kauffman, Omaha, Neb. (Philip J. Willson, John M. Peters, Council Bluffs, Iowa, G. C. Wyland, Avoka, Iowa, Daniel J. Gross, Omaha, Neb., and Dorothy O'D Martin, Atlantic, Iowa, were with them on the brief), for Archie C. Stude, et al.

Before GARDNER, Chief Judge, and THOMAS and COLLET, Circuit Judges.

COLLET, Circuit Judge.

On petition for rehearing it is asserted that we should have treated the appeal from the award of the sheriff's commission to the United States District Court, and the subsequent filing of a complaint in the United States District Court, as an original proceeding in that court and should have held that the United States District Court had jurisdiction on grounds of diversity of citizenship, as was done in Burford v. Sun Oil Co., 319 U.S. 315, 63 S.Ct. 1098, 87 L. Ed. 1424. In our judgment there is no justification for placing that interpretation on the record. The condemnor did not file its action in the United States District Court, as was done in the Burford case. It strictly followed the Iowa procedure for initiating a condemnation suit in the Iowa state courts. The complaint that was filed in the United States District Court after the appeal was lodged there was required by the Iowa statute, and a similar complaint was filed in the Iowa District Court after the appeal to that court. The complaint filed in the United States District Court cannot be treated as having created an original action in the federal court. It is correct, as the Rock Island contends, that the Iowa legislature could not restrict or enlarge the jurisdiction of the federal court by procedural statutes, and we must not be understood to have so held. It may well be that if this action had been commenced in the United States District Court, that court would have had jurisdiction. But actions are not initiated in the federal courts by filing with a sheriff a request that he appoint commissioners to assess damages. It might also be that if the action had been initiated in the federal court that that court would have followed the Iowa procedure under Fed.Rules Civ.Proc. rule 71A, 28 U. S.C.A. But it was not asked to do so. And we do not pass upon that question because it, like the question of whether the action could have been initiated in the federal court, is not in the case.

The petition for rehearing must be and is denied.

Chief Judge GARDNER is of the opinion that the petition should be granted.

GARDNER, Chief Judge (dissenting).

I am not in accord with the views of the majority of the court as above expressed. The primary facts as distinguished from the interpretation of those facts are fairly recited in the original opinion, 204 F.2d 116, 122, and need not be here repeated.

In our original opinion, referring to the contention of the Rock Island that the District Court had original jurisdiction in the proceeding, we said:

"The question of whether the Rock Island could have initiated the proceedings in the United States District Court is not before us for the simple reason that it did not do so and hence the propriety of such action is not presented. We express no opinion on that subject."

This pronouncement is vigorously challenged by the petition for rehearing, and in the foregoing opinion by the majority of this court this position is reaffirmed in the following words:

"On petition for rehearing it is asserted that we should have treated the appeal from the award of the sheriff\'s commission to the United States District Court, and the subsequent filing of a complaint in the United States District Court, as an original proceeding in that court and should have held that the United States District Court had jurisdiction on grounds of diversity of citizenship, as was done in Burford v. Sun Oil Co., 319 U.S. 315, 63 S.Ct. 1098, 87 L.Ed. 1424. In our judgment there is no justification for placing that interpretation on the record. The condemnor did not file its action in the United States District Court, as was done in the Burford case."

It is clear that the question presented is as to the jurisdiction of the District Court. There was diversity of citizenship and the amount involved exceeded the jurisdictional requisite. The authority to determine the requisites to jurisdiction in the Federal courts in diversity of citizenship cases is vested in Congress. By Section 1332, Title 28 U.S.C., it is provided that "(a) The district courts shall have original jurisdiction of all civil actions where the matter in controversy exceeds the sum or value of $3,000 exclusive of interest and costs, and is between: (1) Citizens of different States: * * *." If these prerequisites exist the court is without authority to deny access to the Federal court to any litigant having the qualifications fixed by Congress.

It is said in the majority opinion that the original jurisdiction of the District Court was not invoked by the Rock Island. It is true it had complied with the Iowa statute by proceedings before a Sheriff's Commission and those proceedings were not of a judicial character. The Iowa statute, however, provides that unless an appeal is taken within the specified period the award so made shall become final and an appeal to the State District Court was perfected in accordance with the Iowa statute. Notice of appeal to the United States District Court was served and I think that was a nullity. However, the jurisdiction of the trial court was not invoked by the service of this notice of appeal but it appears from the record and stands without dispute that "On March 7, 1952, the Chicago, Rock Island and Pacific Railroad...