Baltimore & O.R. Co. v. Fulton
| Decision Date | 17 January 1899 |
| Citation | 59 Ohio St. 575,53 N.E. 265 |
| Court | Ohio Supreme Court |
| Parties | BALTIMORE & O. R. CO. v. FULTON. |
Error to circuit court, Belmont county.
Action by Walker Fulton against the Baltimore & Ohio Railroad Company. Judgment for plaintiff. Defendant brings error. Reversed.
Syllabus by the Court
1. Where a case that may be is duly removed from a state to a federal court, the jurisdiction of the state court over the cause at once ceases, and it can take no further step therein; and if thereafter the case is disposed of in the federal court, otherwise than on the merits, the plaintiff cannot recommence the action in the state court, although under like circumstances, he might have done so had the cause not been removed.
2. In such case, whatever right the plaintiff may have under any remedial rule, statutory or otherwise, to recommence the action, must be pursued in the federal court, as after removal it alone has jurisdiction of the cause and the parties.
J. H Collins, for plaintiff in error.
C. L Weems and A. H. & W. Mitchell, for defendant in error.
The question we shall consider in this case arises upon the petition and a demurrer thereto. The petition by sufficient averment states a cause of action against the defendant for the recovery of damages by the administrator of Charles B Fulton for wrongfully causing his death, on the 13th day of January, 1889. The suit was commenced January 19, 1894; and, as it thus appeared that the action had not been commenced within two years, as prescribed by the statute giving the right (sections 6134 and 6135, Rev. St.), the plaintiff, to obviate this, further averred that on July 7, 1891, he, as such administrator, commenced a civil action in this court, against defendant, for the benefit of said parents and brothers and sisters, for causing the death of said Charles B. Fulton, as aforesaid, by the wrongful act, neglect, and default of defendant heretofore explained, the cause of action herein being identical with that set forth in this petition. Such proceedings were had in said action that on August 3, 1891, in pursuance of the statute of the United States providing for the removal of causes from the state to federal courts, the defendant filed in this court a petition and bond for the removal of said cause into the circuit court of the United States in and for the Southern district of Ohio, Eastern division, in which last-named court said cause was so removed and filed, and remained pending until the 6th day of December, 1893. The plaintiff failed therein, otherwise than upon the merits, by the same being disposed of by said court as follows, to wit: Said court dismissed said cause ‘under the fifth rule of said court, said rule providing that cases which have been upon the docket for three general terms shall be stricken therefrom, unless good cause be shown to the contrary.’ The defendant demurred, on the ground that the petition does not state sufficient facts to constitute a cause of action, and that it is insufficient in law. This was overruled, and the defendant excepted.
A number of errors are assigned upon the record; but, as indicated, the only one we shall consider relates to the sufficiency of the petition to entitle the plaintiff to relief on the facts stated in it. This, in fact, presents two questions: (1) Whether the limitation of two years is a part of the right of action, or is merely a limitation of the remedy, so that, if the plaintiff failed in the circuit court otherwise than on the merits, he might, under section 4991, Rev. St., recommence the suit within a year thereafter, although the limitation of two years for bringing the action had then expired; and (2) whether, the cause having been duly removed to the federal court, the plaintiff could, after it had been disposed of in that court, otherwise than on the merits, again, for any purpose, resort to the state court for relief on the same cause of action, whether the limitation of two years had or had not expired.
1. Much can be said in favor of the proposition that the provisions of section 4991, Rev. St., do not apply to a case of this kind; for while it may be admitted that the plaintiff failed in the circuit court otherwise than on the merits, still there is much reason and authority for saying that the limitation of two years, fixed for bringing an action, for causing death by wrongful act, is a part of the right of action itself, and not merely a limitation of the remedy, and that the action cannot therefore in any case be brought after the time limited has expired. Hill v. Town of New Haven, 37 Vt. 501;Taylor v. Coal Co., 94 N.C. 525;Cavanagh v. Navigation Co. (Sup) 13 N.Y.S. 540;Hanna v. Railroad Co., 32 Ind. 113;Railway Co. v. Hine, 25 Ohio St. 629, 634. As apparently contra, see Meisse v. McCoy's Adm'r, 17 Ohio St. 225, though the point was not there made. But, as we do not dispose of the case on this ground, no further consideration will be given it.
2. The case as originally commenced had been properly removed to the United States circuit court of the district in which it was brought, the cause of action therein being, as averred, identical with the cause of action now sued on; and it had there been disposed of, not, it is true, on the merits, but had been dismissed for want of prosecution under a rule of the court. It has been repeatedly decided that, where a case has been properly removed from a state to a federal court, the jurisdiction of the former over the case immediately ceases, and it is its duty, in the language of the statute, to proceed no further in the cause. Its jurisdiction in that case ends with the removal. Any steps thereafter taken are said to be coram non judice and void. Kanouse v. Martin, 15 How. 198; Fisk v. Railroad Co., 6 Blatchf. 362, 380, F. Cas. No. 4,827;Hatch v. Railroad Co., 6 Blatchf. 105 F. Cas. No. 6,204;Clark v. Railway Co., 11 F. 355;New York Silk Mfg. Co. v. Second Nat. Bank, 10 F. 204;Shaft v. Insurance Co., 67 N.Y. 544;Gordon v. Longest, 16 Pet. 97; Desty, Rem. Causes, §§ 108a, 108c; Dill. Rem. Causes, § 75a; Kern v. Huidekoper, 103 U.S. 485;Insurance Co. v. Dunn, 19 Wall. 214; Hadley v. Dunlap, 10 Ohio St. 18; Herryford v. Insurance Co., 42 Mo. 148.
We fail to perceive any good reason for holding that this only applies so long as the suit removed is pending, and that if the case should be dismissed by the federal court for any reason, other than on the merits, it loses the jurisdiction acquired by the removal, and ...
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