Bley v. Travelers Ins. Co.

• Decision Date: 19 April 1939
• Docket Number: No. 17.,17.
• Citation: 27 F. Supp. 351
• Parties: BLEY v. TRAVELERS INS. CO.
• Court: U.S. District Court — Southern District of Alabama

27 F. Supp. 351

BLEY v. TRAVELERS INS. CO.

No. 17.

District Court, S. D. Alabama, N. D.

April 19, 1939.

Henry McDaniel, of Demopolis, Ala., and Smith & Johnston, of Mobile, Ala., for plaintiff Bley.

Bradley, Baldwin, All, White and K. C. Shelburne, all of Birmingham, Ala., and J. F. Aldridge, of Eutaw, Ala., for defendant Travelers Ins. Co.

McDUFFIE, District Judge.

The record discloses that on September 21, 1938, Isadore Bley, a citizen of Alabama, commenced two actions at law against the Travelers Insurance Company, a corporation. In one of said actions, numbered 3212, on the docket of the State Court, plaintiff claimed $2,700, and in the other action numbered 3213, in said court, plaintiff claimed the sum of $1,350.

Service was had upon the Insurance Company on September 26, 1938, and thereafter on October 21, 1938, prior to the date of the expiration of the time within which to answer, defendant company, after due notice to the counsel of record for the plaintiff, moved for consolidation of the two causes in accordance with Section 9497 of the Alabama Code. On the same date, October 21, 1938, the Judge of the State Court entered the following order in the cause numbered 3212 in said court:

"Order Consolidating Causes

"This cause coming on to be heard upon the motion of the defendant to consolidate this cause with cause numbered 3213 in this Court entitled `Isadore Bley, Plaintiff, vs. The Travelers Insurance Company, a corporation, Defendant', and it appearing to the Court that the two actions are pending in this Court and that the parties therein are identical, and that the said actions might have been joined, it is hereby, in accordance with Section 9497 of the Code of Alabama,

"Ordered that the two said actions be and they are hereby consolidated.

"Done this October 21, 1938. "Benj. F. Elmore "Circuit Judge."

On the same date, October 21, 1938, the Judge of the State Court made and entered the following bench notice, case numbered 3212: "October 21, 1938, — Continued by agreement."

On the same date, October 21, 1938, in case numbered 3213, the Judge made the following bench note: "October 21, 1938, — Continued by consent."

On October 25, 1938, the Travelers Insurance Company filed in the office of the Clerk of the State Court a petition for the removal of the consolidated causes to the District Court of the United States for the Northern Division of the Southern District of Alabama, accompanying the same with a bond conditioned as required by the statutes in petitions for removal.

Thereafter plaintiff Bley moved the State Court to strike the petition for removal, assigning numerous grounds for the motion, amongst which were: that in moving for consolidation and having said motion granted by the State Court, defendant had invoked and submitted itself to the jurisdiction of the State Court; that it had been granted affirmative relief by the State Court, and thereby waived any right it might have had to remove; that the petition for removal and the bond were filed too late.

Thereafter on the 5th day of November, the Judge of the State Court in each of the cases entered the following order and judgment on the petition for removal:

"Order and Judgment on Petition for Removal to Federal Court and Motion of Plaintiff to Strike Same.

"Upon the hearing and consideration of the petition for Removal to Federal Court and of the written motion of the plaintiff in the above styled and entitled causes, and of the evidence offered and submitted by the plaintiff in support of his said Motion, the Court is of the opinion and finds and holds that this Court has acquired and has full and complete jurisdiction of the parties to and the subject matter of the above styled and entitled causes, and should retain such jurisdiction, that the defendant has waived its right, if any such right it ever had, to have said above styled and entitled causes removed to the District Court of the United States for the Northern Division of the Southern District of Alabama, as prayed for in its petition, and that the motion of plaintiff is well taken; and it is, therefore considered, ordered and adjudged by the Court, that the prayer of said petition be, and it hereby is, refused and denied, that the motion of plaintiff be, and it hereby is, sustained, and the Court declines and refuses to make and enter an order of removal, and does retain jurisdiction of the parties to and subject matter of said above styled and entitled causes, and to this ruling and action of the Court the defendant did then and there in open Court, duly and legally except.

"Ordered and adjudged this November 5, 1938, in term time.

"Benj. F. Elmore "Judge of the Circuit Court of Marengo County, Alabama.

The defendant corporation, appealing to the State Supreme Court, filed a petition for a writ of mandamus seeking an order commanding the Judge of the State Court to vacate and set aside his order and judgment denying the Petition for Removal, and to make an appropriate order removing the consolidated causes to the Northern Division of the District Court of the Southern District of Alabama.

The Supreme Court of Alabama refused to issue the writ sought by the Insurance Company, whereupon the Insurance Company filed its petition in this Court, setting forth in the main the above mentioned facts and asking that plaintiff Bley be enjoined from proceeding further with the prosecution of the consolidated causes. The refusal by the Alabama Supreme Court was argued as strong reasoning why the cause should not be removed, but this Court is not advised whether or not the merits of removal were considered The defendant had other remedies.

After argument on the petition for injunction and submission on brief, plaintiff Bley filed a motion to remand this cause to the State Court. This Court is of the opinion that the motion to remand is the appropriate and proper procedure.

The motion to remand is based upon the suggestion that the cause was improperly removed because this Court is without jurisdiction and the consolidation of the two cases, each of which was for less than the jurisdictional amount, did not make the cases removable to this Court; further that the consolidation by the State Court was involuntary so far as the plaintiff Bley was concerned; that the plaintiff had a right to bring a separate action on each of the policies of insurance and that the consolidation order of the State Court could not and did not make the cause removable. That since the order of consolidation was obtained at the instance of the Insurance Company and against the will of the plaintiff, the effect was to coerce the plaintiff into having his two causes consolidated. That the defendant, by making the motion for consolidation, waived his right to remove the case, in that he submitted himself to the jurisdiction of the Court and obtained affirmative relief therefrom.

This Court has given considerable thought and study to the questions here presented, which are two of importance, namely: First: Does the consolidation order of the State Court have the effect of merging the two cases into one, such as might be determined by one verdict and one judgment rather than a judgment and verdict in each cause, or asked in another way, does each of the two cases preserve its identity after the consolidation order, or are they merged into one action?

Second: Did the defendant, by moving for the order of consolidation in the State Court, or by enjoying whatever benefits may have resulted to it from the act of the Court granting the order of consolidation, submit itself to the jurisdiction of the State Court to such an extent as to waive the right to remove its cause to the Federal Court?

If the first of these questions is answered in the negative, a discussion of the second is unnecessary. The second may be disposed of, however, in the brief statement that this Court is of the opinion the defendant company, by none of its acts, submitted itself to the jurisdiction of the State Court so as to waive the right of removal. There was no pleading to the merits of the cause. While it is stated that the defendant filed an answer to the plaintiff's claim, such an answer was filed after the move for consolidation and the petition for removal. 1 Hughes, Federal Practice, 1931, §§ 253, 255; Atlanta, K. & N. Ry. Co. v. Southern Ry. Co., 6 Cir., 131 F. 657, 661; McMillen v. Indemnity Ins. Co. of North America, D.C., 8 F.2d 881; Duvall v. Wabash Ry. Co., D.C., 9 F.2d 83.

In the case of McMillen v. Indemnity Insurance Company of North America, D. C., 8 F.2d 881, 883, it was said:

"The defendant did not select the forum, but it should have the unqualified right to use appropriate processes until in orderly procedure it can remove its controversy to the national court. Otherwise, substantial rights might be lost."

"The defendant should not be deprived of its constitutional and statutory right to a trial in a court of the United States upon the ground of waiver, `unless a clear case of intent to submit and have a hearing in the state court is made to appear.' Atlanta, K. & N. Ry. Co. v. Southern Ry. Co., supra, 131 F. loc. cit. 661 (66 C.C.A. 605). No such intent is shown in the instant case.

"The motion to remand is denied." See Atlanta, K. & N. Ry. Co. v. So. Ry. Co., 6 Cir., 131 F. 657.

Turning now to the first question, in trying to find the effect of the order of the State Court consolidating the causes herein, no direct and conclusive authority is found construing Section 9497 of the Alabama Code, which has been the law for nearly a hundred years, and which reads as follows: "Whenever two or more actions are pending at the same time, between the same parties, in the same court, and which might have been joined, the court may order them to be consolidated."

The Federal statute reads as follows: "When causes of a like nature or relative to the same question are pending before a court of the...