Waco Hardware Co. v. Michigan Stove Co.
| Decision Date | 03 January 1899 |
| Docket Number | 672. |
| Citation | 91 F. 289 |
| Parties | WACO HARDWARE CO. v. MICHIGAN STOVE CO. |
| Court | U.S. Court of Appeals — Fifth Circuit |
J. E Boynton, for plaintiff in error.
A. W Cunningham, for defendant in error.
Before PARDEE, Circuit Judge, and BOARMAN and PARLANGE, District Judges.
This suit was sought to be removed by the suitor who appeared as the plaintiff in the state district court of McLennan county Northern district of Texas. The defendant therein, now the plaintiff in error, unsuccessfully urged its motion to remand the cause. The trial of the suit in circuit court resulted in a judgment in favor of defendant in error for $925.20. Plaintiff in error is here contending that the circuit court erred in not remanding the cause to the state court. It has presented several assignments of errors, but, as counsel on each side at this trial in argument agree that the only matter necessary for us to pass on is 'as to whether the circuit court was right in taking jurisdiction of the case,' we will pass only on that issue of law.
Defendant in error contends that 'the filing of a counterclaim on matters independent of plaintiff's cause of action is the suit, which authorizes a removal. ' It will be seen that defendant in error says the Waco Hardware Company, defendant in the state court, filed therein a counterclaim on 'matters independent of plaintiff's cause of action ' Under the statutory practice (article 755, Rev. St. Tex. 1895), the right to file a counterclaim by defendant is limited to such a claim only as 'arises out of, or is incident to or connected with, plaintiff's cause of action. ' If the defendant in the state court set up a counterclaim on matters independent of plaintiff's cause of action, it is clear that the state court had no jurisdiction to allow such a claim to be filed by the defendant therein, and, on the theory of counsel for defendant in error, there was no suit in the state court to remove.
The plaintiff in the state court filed its suit to recover a sum less than $2,000. The defendant therein answered, by a demand in reconvention, for a sum larger than the jurisdictional amount. It may be that there is some conflict in the authorities as to whether the plaintiff, in seeking to remove its suit, should be allowed to show that the subject-matter of the suit sought to be removed is now in excess of the jurisdictional sum, by adding the sum it sued for in the state court to the amount claimed by the defendant therein in its plea in reconvention. Under the view we shall express on the removability of the suit under Act 1887-88, it is not necessary to pass upon such contentions. Whatever may have been the liberal tendency, all along the line, from the judiciary act of 1789, to and through the removal act of 1875, to Act 1887-88, to vest suitors in state courts with the right to remove suits to the federal courts, it is clear, when we read Act 1887-88 in the light of numerous decisions of the United States courts on the several antecedent removal acts, that congress intended to place, and did place, limitations upon removals, such as have been characterized by the courts as 'reactionary.' Keeping in mind the manifest purpose of congress, the profession, as well as the courts, readily realized that Act 1887-88, would and did materially abridge and restrict the federal jurisdiction, and cut off a large class of cases that would otherwise have been removable. 'The statute,' says Mr. Dillon (Dill. Rem. Causes (Black's Ed.) Sec. 11), 'moreover, is plainly designed to remodel the whole system of the jurisdiction of the circuit court, and therefore repeals by implications, if not expressly, all legislation in any way inconsistent with it.'
Counsel for defendant in error, of course, admits the act limits the right of removal to 'the defendant or defendants' yet he contends that by implication of the law, on the state of case in the state court made up after defendant filed his plea in reconvention, the relation of his client to the suit in the state court was changed, so that his client became fully possessed of the right to remove its suit, just as if it had been originally brought in the state court against it as the defendant. It would follow, from this contention, that a suitor, after having brought his adversary into the state court to answer his demand, may have a right to remove his suit, not founded on the suitor's statement in the petition of his cause of action in the state court, but depending entirely upon matters set up in an answer, or upon a defensive plea in reconvention, filed at the will of the defendant...
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Enger v. Northern Finance Corporation
...44 F. 645; Bennett v. Devine (C. C.) 45 F. 705; McKown v. Kansas & T. Coal Co. (C. C.) 105 F. 657; Waco Hardware Co. v. Michigan Stove Co., 33 C. C. A. 511, 63 U. S. App. 396, 91 F. 289. But it was held contra in Clarkson v. Manson (C. C.) 18 Blatchf. 443, 4 F. 257. Price & Hart v. T. J. El......
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Trullinger v. Rosenblum
...different from the present statute, the right of removal then and now being given only to the defendant. "In Waco Hardware Company v. Michigan Stove Co., 5 Cir., 91 F. 289, 290, wherein the plaintiff in the state court sued for less than the federal jurisdictional amount was met with a coun......
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Sheets v. Shamrock Oil & Gas Corporation
...different from the present statute, the right of removal then and now being given only to the defendant. In Waco Hardware Company v. Michigan Stove Co., 5 Cir., 91 F. 289, 290, wherein the plaintiff in the state court sued for less than the federal jurisdictional amount and was met with a c......
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Haney v. Wilcheck, 48
...was reversed. The theory on which these cases rest has met with opposition in some of the less recent cases. See Waco Hardware Co. v. Michigan Stove Co., 5 Cir., 91 F. 289, and Glover Machine Works v. Cooke Jellico Coal Co., D.C.Ky., 222 F. 531, which hold the view that a plaintiff in a sta......