Amanda v. Rodman

• Decision Date: 08 November 1902
• Docket Number: 12,739
• Parties: AMANDA V. RODMAN, as Aministratrix, etc., v. THE MISSOURI PACIFIC RAILWAY COMPANY
• Court: Kansas Supreme Court

70 P. 642

65 Kan. 645

AMANDA V. RODMAN, as Aministratrix, etc., v. THE MISSOURI PACIFIC RAILWAY COMPANY

No. 12,739

Supreme Court of Kansas

November 8, 1902

Decided July, 1902.

Error from Wyandotte court of common pleas; WM. G. HOLT, judge.

Judgment affirmed.

SYLLABUS

SYLLABUS BY THE COURT.

1. PRACTICE, DISTRICT COURT -- Jurisdiction -- Removal of Cause. When a federal court, by dismissal without prejudice, and without a determination of the merits relinquishes its jurisdiction over the parties to, and subject-matter of, an action removed to such court from a state court, plaintiff therein may again invoke the jurisdiction of the state court; and that court may properly proceed to a determination of the controversy irrespective of, and unaffected by, the former removal to, and jurisdiction in, the federal court.

2. LIMITATION OF ACTIONS -- Death by Wrongful Act. Section 422 of the civil code (Gen. Stat. 1901, § 4871) creates a right of action for damages for death by wrongful act which did not exist at common law and which does not obtain in the absence of such act. The limitation of two years prescribed in the act in which such action must be commenced is a condition imposed upon the exercise of the right of action granted, and this time is not extended by the pendency and dismissal of a former action, as provided in section 23 of the code (Gen. Stat. 1901, § 4451).

T. P. Anderson, and L. C. True, for plaintiff in error.

Waggener, Horton & Orr, for defendant in error.

POLLOCK J. All the Justices concurring.

OPINION

POLLOCK, J.:

T. M. Rodman, an employee of the receivers of the Union Pacific Railway Company, was killed by an engine of defendant on its line of road in Kansas City, on the 14th day of April, 1896. On the 1st day of August, 1896, Amanda Rodman, his widow, commenced an action against the receivers of the Union Pacific Railway Company and the Missouri Pacific Railroad Company of Missouri, to recover damages for the death of Rodman by wrongful act, in accordance with the provisions of section 422a of the civil code (Gen. Stat. 1901, § 4872). That action was removed to the circuit court of the United States for the district of Kansas, and thereafter, on the 1st day of December, 1898, was dismissed therefrom by plaintiff, without prejudice to the bringing of a future action.

Meanwhile, the widow having been duly appointed and qualified as administratrix of the estate of deceased, this action was commenced by her in her representative capacity in the court of common pleas of Wyandotte county against the Missouri Pacific Railway Company of Kansas, on the 28th day of December, 1898, to recover damages for the death of the deceased, under the provisions of section 422 of the code (Gen. Stat. 1901, § 4871). The defendant answered, among other defenses, denying jurisdiction in the state court to try or determine the controversy, and also pleaded in bar the limitation contained in the act under which suit is brought. The trial court sustained a demurrer to the evidence offered by plaintiff and entered judgment for costs in favor of defendant. Plaintiff below brings error.

The questions arising upon this record for our determination are well defined, clearly presented, and important. It is affirmed on the one hand, and denied on the other, as follows: (1) That, the former action having been properly removed into the federal court, the loss of jurisdiction by the state court over the subject-matter was absolute and final, not alone as to the action so removed, but as to this action brought after dismissal of the former action from the federal court; (2) that the pendency of the former action, wherein the widow in her personal capacity was plaintiff, and the receivers of the Union Pacific Railway Company and the Missouri Pacific Railroad Company, alleged to be a corporation of the state of Missouri, were defendants, did not operate to suspend the running of the general statute of limitations as to the present action, wherein the widow in her representative capacity, as administratrix, is plaintiff, and the Missouri Pacific Railway Company, alleged to be a Kansas corporation, is defendant; (3) that section 422 of the civil code creates a right of action for damages for death by wrongful act, in the absence of which no such right of action would exist, and prescribes as a condition to such right of action the time within which the right must be exercised; and, as the present action was not brought within the prescribed time, the right was lost, and this notwithstanding the pendency of the prior action and its failure otherwise than upon the merits within one year next preceding the bringing of this present action.

Upon the first question raised the authorities are divided. Decisions from courts of high standing and undoubted authority are not wanting in support of this contention of defendant in error, notably, the decision of the supreme court of Ohio in Railway Co. v. Fulton, Adm'r, 59 Ohio St. 575, 53 N.E. 265, 44 L. R. A. 520, and that of the supreme court of Georgia in Cox v. The East Tennessee, Virginia & Georgia Railroad, 68 Ga. 446. We think, however, both the weight of authority and the better reasoning are against the conclusion reached in these decisions.

When, in an action pending in a state court, cognizable in and removable to the federal court, there is filed in due time a proper petition and bond for removal to the federal court, the state court, ipso facto, loses jurisdiction, and any further proceedings taken by the state court in that action, or a subsequent action brought on the identical subject-matter, between the same parties, during the pendency of the action removed to the federal court, or after final judgment therein, is coram non judice, and void. But when the federal court, by dismissal, relinquishes its jurisdiction over the subject-matter of the action and the parties without adjudication of the merits, the plaintiff may again invoke the jurisdiction of the state court, and that court may properly proceed to a determination of the controversy irrespective of, and unaffected by, the former removal to, or jurisdiction in, the federal court. ( Gassman v. Jarvis, 100 F. 146; Bush. v. Kentucky, 107 U.S. 110, 1 S.Ct. 625, 27 L.Ed. 354; Hughes v. Green, 28 C. C. A. 537, 84 F. 833; Chamberlain v. Eckert, 2 Biss. 124, 5 F. Cas. 415.)

The conclusion reached in this case renders it unnecessary to express any opinion on the second proposition stated. For, conceding the case at bar to be, in parties and subject-matter, sufficiently identified with the action first brought and removed to the federal court, and therefrom dismissed without prejudice prior to a determination of the merits, and within one year next preceding the commencement of this present action, to have conserved a right of action governed by the general statutes of limitations, yet, we do not think plaintiff can recover. Section 422 of the civil code, provides:

"When the death of one is caused by the wrongful act or omission of another, the personal representatives of the former may maintain an action therefor against the latter, if the former might have maintained an action had he lived against the latter for an injury for the same act or omission. The action must be commenced within two years. The damages cannot exceed $ 10,000, and must inure to the exclusive benefit of the widow and children, if any, or next of kin, to be distributed in the same manner as personal property of the deceased."

Section 422a provides:

"That in all cases where the residence of the party whose death has been or hereafter shall be caused as set forth in section 422 of chapter 80, Laws of 1868, is or has been at the time of his death in any other state or territory, or when, being a resident of this state, no personal representative is or has been appointed, the action provided in said section 422 may be brought by the widow, or, where there is no widow, by the next of kin of such deceased."

Under this section, Amanda Rodman, as widow, brought the action which was removed to the federal court and dismissed therefrom without prejudice, within a year next preceding the bringing of the present action. Section 23 of the code (Gen. Stat. 1901, § 4451) provides:

"If any action be commenced within due time and a judgment thereon for the plaintiff be reversed, or if the plaintiff fail in such action otherwise than upon the merits, and the time limited for the same shall have expired, the plaintiff, or if he die and the cause of action survive, his representatives, may commence a new action within one year after the reversal or failure."

The question is, Did the pendency of the former action and the saving terms of this section suspend the operation of the limitation provided in section 422, and permit the bringing of the action at bar more than two years after the cause of action arose? The question here presented is one of first instance in this court. Our decision is therefore untrammeled by any former controlling opinion, and is based upon, and induced by, an examination of many decisions arising upon kindred statutes, and the reasoning therein employed. The precise question has seldom arisen. Questions analogous in their nature are of frequent occurrence.

At common law, or in the absence of section 422, no right of action would exist in this state in favor of any one to recover damages for the wrongful death of Rodman. ( Insurance Co. v. Brame, 95 U.S. 754, 24 L.Ed. 580; Dennick v. Railroad Co., 103 id. 11, 26 L.Ed. 439; The Harrisburg, 119 id. 199, 7 S.Ct. 140 30 L.Ed. 358.) The general character and purpose of the act, and the nature of the limitation therein contained, has many times received the consideration of the...