Barber v. Boston & M.R. Co.
| Decision Date | 07 April 1906 |
| Citation | 145 F. 52 |
| Court | U.S. District Court — District of Vermont |
| Parties | BARBER v. BOSTON & M. R. CO. |
Orion M. Barber, for plaintiff.
George A. Weston, and Eleazer L. Waterman, for defendant.
This is an action on the case brought in a state court, and removed here for negligently setting fire to the plaintiff's buildings and destroying some, and partly destroying other, property alleged to be of the value with expense of repairs of much more than $2,000 with an ad damnum of that amount. It has now been heard on a motion to remand. The motion would be too late, being after the term at which it was entered, if the ground was not jurisdictional; as it is the motion is in order at any time; The allegations of value and expense are not of sums certain like those in debt or assumpsit on records or written instruments, which must be proved as laid; but evidence of different amounts would be admissible under them, and the limit of recovery on all would be the ad damnum, and so that would govern the amount in dispute. Cole v. Goodall, 39 Vt; 400, 94 Am. Dec. 334; Grodon v. Longest, 16 Pet. 97, 10 L.Ed. 900; Kanouse v. Martin, 15 How. 198, 14 L.Ed. 660; Barry v. Edmunds, 116 U.S. 550, 6 Sup.Ct. 501, 29 L.Ed. 729. The case must as it now stand, therefore, be remanded.
It is suggested that the ad damnum may be raised in the state court, and that the matter in dispute is what it may be raised to; and if not that the right to remove a removable case might be kept away by keeping the ad damnum too small till after the time for removal should elapse. But the right to remove attaches for the first time whenever any change in the proceedings makes it so, and it may then be availed of. No. Pacific R. R. Co. v. Austin, 135 U.S. 315, 10 Sup.Ct. 758, 34 L.Ed. 218; Powers v. Chesapeake & Ohio R. R. Co., 169 U.S. 92, 18 Sup.Ct. 264, 42 L.Ed. 673.
Motion granted, and cause remanded.
To continue reading
Request your trial
-
Trullinger v. Rosenblum
...of authority. The plaintiff may voluntarily and conclusively determine the amount to which his recovery shall be limited. Barber v. Boston & M. R. Co., C.C., 145 F. 52; Simmons v. Mutual, Reserve Fund Life Ass'n, C.C., 114 F. 785; Western Union Tel. Co. v. White, C.C., 102 F. 705. That a co......
-
Harley v. Firemen's Fund Ins. Co.
... ... amount to which his recovery shall be limited. Barber v ... Boston & M.R. Co. (C.C.) 145 F. 52; Simmons v ... Mutual, etc., Ins. Co. (C.C.) 114 F ... ...
-
Martin v. Richmond Cotton Oil Co.
...that the right of removal had not been lost had defendant applied for same. [Powers v. Railroad, 169 U.S. 92, 42 L.Ed. 673; Barber v. Railroad, 145 F. 52; Remington Railroad, 198 U.S. 95, 49 L.Ed. 959.] IV. Turning to the merits of the case, the evidence discloses that deceased was engaged ......
-
El Paso & Southwestern Co. v. Riddle
... ... Collins v. Twin Falls North Side Land ... & Water Co. (D.C.) 204 F. 134; Barber v. Boston & M ... Ry. Co. (C.C.) 145 F. 52; Swann v. M.R.F. life Ass'n ... (C.C.) 116 F. 232 ... ...