Anderson v. Western Union Telegraph Co.
| Decision Date | 27 November 1914 |
| Citation | 218 F. 78 |
| Parties | ANDERSON v. WESTERN UNION TELEGRAPH CO. |
| Court | U.S. District Court — Eastern District of Arkansas |
The statutes of the state Arkansas require a defendant, when served with process 10 days before the commencement of the term, to plead on or before the third day of that term. On the 17th day of October, 1914, the defendant, a nonresident corporation (the plaintiff being a citizen of the state of Arkansas), served notice in writing on the attorney for the plaintiff that on the 19th day of October, 1914, it would file its petition and bond for removal of the cause to the United States District Court for the district in which the cause was then pending, and of which plaintiff was a resident. After service of this notice, but on the same day and before the petition and bond for removal were filed, and before the defendant had filed its answer, plaintiff, without notice to the defendant, amended his complaint by interlineation, reducing his claim to below $3,000.
Section 6143, Kirby's Digest of the Statutes of Arkansas provides: 'The plaintiff may amend his complaint without leave at any time before an answer is filed, and without prejudice to the proceedings already had.'
On the day specified in the notice, and which was within the time the defendant was, under the laws of the state, required to plead, but after the amendment had been made, it filed in the state court its petition and bond for removal, which are in proper form, showing the necessary diversity of citizenship and that the amount involved was $5,000, disregarding the amendment which reduced the claim. The state court, against the objections of the plaintiff, granted the petition, and the record having been filed in this court within the time prescribed by section 29 of the Judicial Code (Act March 3, 1911, c. 231, 36 Stat. 1095 (Comp. St. 1913, Sec. 1011)), the plaintiff has moved to remand the cause, upon the ground that at the time the petition and bond for removal were filed the amount involved in the action did not exceed in value the sum of $3,000, exclusive of interest and costs.
L. Hunter and J. W. Brawner, both of Piggott, Ark., for plaintiff.
R. E. L. Johnson, of Paragould, Ark., for defendant.
TRIEBER District Judge (after stating the facts as above).
As this question has never been determined by any court in a published opinion, no notice of the intention to ask for a removal of a cause having been required before the enactment of the Judicial Code, it is deemed proper, for the guidance of attorneys in this district, until the appellate courts have authoritatively settled it, to file an opinion.
The law as uniformly declared is that the right of removal has to be determined from the facts as they appear from the pleadings at the time the petition and bond are filed (Chicago, B. & Q. Ry. Co. v. Williard, 220 U.S. 413, 426, 31 Sup.Ct. 460, 55 L.Ed. 521), and, if in proper form, the jurisdiction of the state court ceases immediately, except for the purpose of making the order of removal. All subsequent proceedings in the cause by the state court are coram non judice and absolutely void. Flint v. Coffin, 176 F. 872, 100 C.C.A. 342; Boatmen's Bank v. Fritzlen, 135 F. 650, 653, 68 C.C.A. 288, 291, and authorities there cited (approved in Fritzlen v. Boatmen's Bank, 212 U.S. 364, 373, 29 Sup.Ct. 366, 53 L.Ed. 551).
In the case at bar it appears from the complaint, after it had been amended, that at the time of the filing of the petition and bond for removal the amount involved was not sufficient to confer jurisdiction on a national court. It is claimed on behalf of the defendant that, as the amendment was made after the service of the notice of the intended application for removal, it was for the sole purpose of preventing a removal; that this was a fraud on the defendant, for the purpose of depriving it of a right granted by the laws of the United States; and for this reason the court should disregard the amendment and treat the cause as it appeared from the complaint at the time the notice of the intention to remove it was served on counsel for the plaintiff.
Ordinarily it cannot be doubted that it is for the plaintiff to determine what damages he thinks he is entitled to, and if he sees proper to be satisfied with a smaller sum than he originally thought he should recover he has a right to reduce his claim, provided it was before the state court had lost jurisdiction of the cause. The fact that his object in reducing his claim was to prevent a removal is immaterial unless he has lost control of his action after notice of the defendant's intention to remove the cause to the national court. It has been uniformly...
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Mississippi Power & Light Co. v. Pitts
... ... White, Fed. Cas. No. 8,802; Maine v. Gilman, 11 ... F. 214; Anderson v. Western Union Tel. Co., 218 F ... 78; Lake Erie & W. R. Co. v ... ...
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Herbert v. Roxana Petroleum Corporation
...on the record as at the time of the filing of the petition for removal. Miller v. Soule (D. C.) 221 F. 493; Anderson v. Western Union Telegraph Co. (D. C.) 218 F. 78. Section 29 of the Judicial Code (Comp. St. § 1011) requires that petitions for removal shall be duly verified. A verificatio......
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Copeland v. Erie R. Co.
...of South Carolina ex rel. Tillman v. Coosaw Co. (C. C.) 45 F. 804, affirmed 144 U. S. 550, 12 S. Ct. 689, 36 L. Ed. 537; Anderson v. Telegraph Co. (D. C.) 218 F. 78. The question to be determined, therefore, is as to whether or not, as claimed by plaintiff (in each case respectively), the f......
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Johnson v. Walsh, 514.
...filing of the petition for removal, determines the right of removal. Colorado Life Co. v. Steele, 8 Cir., 95 F.2d 535; Anderson v. Western Union Telegraph, D.C., 218 F. 78. Plaintiff's motive in making the amendment to the original petition is immaterial. Chicago R. I. & P. R. Co. v. Dowell......