Baltimore & O.R. Co. v. Ford

• Decision Date: 27 June 1888
• Citation: 35 F. 170
• Court: Circuit Court of Virginia
• Parties: BALTIMORE & O.R. CO. v. FORD.

35 F. 170

BALTIMORE & O.R. CO. v. FORD.

United States Circuit Court, D. West Virginia.

June 27, 1888

Boggess & Hutchinson, for complainant.

R. W Monroe, for defendant.

JACKSON J., (orally.)

The bill filed in this cause by the Baltimore & Ohio Railroad Company shows that on the 24th day of April, 1880, Francis M Ford, administrator of the estate of Joseph M. Ashby deceased, commenced a suit in the circuit court of Preston county, in the state of West Virginia, against this plaintiff, claiming damages $5,000; that afterwards, on the 3d day of June, 1881, the Baltimore & Ohio Company, before a final trial of the same, filed a petition in the circuit court of Preston county, accompanied with the proper bond praying for the removal of the said cause from that court into the circuit court of the United States for this district; that on the 2d day of August, 1881, it filed in this court a copy of the record of the said suit, including all of the proceedings, as required by the act of congress, transferring the said suit from the state court into the United States court; that after the cause had been transferred to this court, the plaintiff, by his counsel, appeared from time to time, and upon two different occasions argued demurrers filed to the original and amended declarations, both of which demurrers were sustained, and an order was entered on the hearing of the second demurrer to the amended declaration dismissing the suit, and giving the defendant, the Baltimore & Ohio Company, a judgment for costs; that notwithstanding the case was transferred from the state to the federal court, wherein the same is exclusively cognizable, yet the plaintiff and his attorney, in defiance of the jurisdiction, orders, and judgment of this court, are threatening to press the trial of the cause in the state court, which would be injurious to the Baltimore & Ohio Railroad Company, and contrary to the act of congress. Upon this state of facts the bill prays that, inasmuch as the case has been adjudicated and determined in the United States court, that the plaintiff in the action on the law side of the court be enjoined and prohibited from any and all proceedings in the circuit court of Preston county, or any other court of the state. To this bill the defendant files his answer, admitting that he had instituted the suit in his character of administrator in the circuit court of Preston county, and that the Baltimore & Ohio Company had filed its petition, accompanied with the proper bond, praying for the removal of the same, and that no action was asked of or taken by the circuit court of Preston county upon the petition. The answer admits the judgment on the demurrer in the circuit court of the United States, but relies upon the fact 'that no legal right existed to remove the cause into the circuit court of the United States at the time that it was removed,' and claims that the appearance of the Baltimore & Ohio Company, from time to time, in the state court, was a waiver of their right to transfer the case. It also claims the Baltimore & Ohio Company to be a domestic and not a foreign corporation, and for these reasons asks that the preliminary injunction heretofore awarded be dissolved, and the bill be dismissed. To this answer exceptions were filed, but the court does not deem it material to notice them, inasmuch as the case turns upon the legal questions raised by the bill and answer, which can be disposed of upon the motion to dissolve the injunction, upon which the case is now heard.

As to the question whether the Baltimore & Ohio Railroad Company is a foreign or domestic corporation, this court has so often held that it is a foreign corporation, and as such entitled to sue in the United States court, that it is no longer considered an open question. Railroad Co. v. Supervisors, not reported; County Court v. Railroad Co., ante, 161; Railroad Co. v. Harris, 12 Wall. 65; Railroad Co. v. Koontz, 104 U.S. 5; Goodlett v. Railroad Co., 122 U.S. 391 et seq., 7 S.Ct. 1254. It is suggested in the answer that no action was taken by the circuit court of Preston county upon the petition and bond filed in that court by the Baltimore & Ohio Company, for the removal of the cause. In this connection it is claimed that, after the removal upon the part of the Baltimore & Ohio Company, its counsel appeared, from time to time, in the state court, and made motions in the case, among others, to continue it, and that for this reason it waived its right to be heard in this court. It was not important, nor was it necessary, for that court to act upon the petition and bond if it did not feel inclined to do so. Neither a want of action upon the part of that court, nor its refusal to remove the case, would divest this court of jurisdiction. Whenever the proper petition and bond were filed pursuant to the act of congress, that court lost its jurisdiction, and this court acquired it when a transcript of the record was filed within the period prescribed by the act of congress, and that court had no right to proceed further with the case. The supreme court so held in the case of Insurance Co. v. Dunn, 19 Wall. 214, and in Removal Cases, 100 U.S. 457; Railroad Co. v. Mississippi, 102 U.S. 135; Kern v. Huidekoper, 103 U.S. 485. Justice HARLAN, in delivering the opinion of the court in Railroad Co. v. Mississippi, said 'that it was scarcely necessary to say that the railroad company did not lost its right to raise the...