Chi., R. I. & P. Ry. Co. v. Brazzell

• Decision Date: 14 May 1912
• Docket Number: Case Number: 3214
• Citation: 1912 OK 335,33 Okla. 122,124 P. 40
• Court: Oklahoma Supreme Court
• Parties: CHICAGO, R. I. & P. RY. CO. v. BRAZZELL.

1912 OK 335

124 P. 40

33 Okla. 122

CHICAGO, R. I. & P. RY. CO. v. BRAZZELL.

Case Number: 3214

Supreme Court of Oklahoma

Decided: May 14, 1912

Syllabus

¶0 1. APPEAL AND ERROR-- Record--Scope and Contents--Petition for Removal. A petition and bond for removal, having been duly incorporated in a valid case-made, thereby becomes a part of the appeal record without a bill of exceptions.

2. REMOVAL OF CAUSES--Proceedings--Effect of Application. The question presented to the trial court when a petition for removal is filed, accompanied by proper bond, is one of law arising on the sufficiency of the petition, and, where the question of the right of removal arises out of the facts averred, the same cannot be tried in the state court; for jurisdiction to hear and determine this question is vested exclusively in the federal court to which removal is sought.

Error from District Court, Pottawatomie County; Chas. B. Wilson, Jr., Judge.

Action by C. M. Brazzell against the Chicago, Rock Island & Pacific Railway Company. Judgment for plaintiff, and defendant brings error. Reversed and remanded, with directions.

C. O. Blake; H. B. Lowe, R. J. Roberts, W. H. Moore, and J. H. Woods, for plaintiff in error.

H. H. Smith, for defendant in error.

DUNN, J.

¶1 This case presents error from the district court of Pottawatomie county. On November 3, 1910, C. M. Brazzell, defendant in error, as plaintiff, brought his action against plaintiff in error for the recovery of $ 25,000 damages for personal injuries, alleged to have been received by him on or about August 17, 1910. Plaintiff alleged in his petition that he was a resident of the state of Tennessee. Within due time and prior to filing its answer, the defendant filed a petition for removal, in which it alleged that the time had not elapsed within which it was permitted to answer the petition, and that the plaintiff was, at the time of the institution of the suit, and still was, a citizen of the state of Oklahoma residing in Pottawatomie county; that the defendant was, at the time of the institution of the suit, and ever since had been, a corporation organized under and by virtue of the laws of the states of Illinois .and Iowa, with its principal place of business in the city of Chicago, and was a nonresident of the state of Oklahoma; that the controversy was between citizens of different states, and was a civil action, where more than $ 2,000, exclusive of interest and costs, was involved. The prayer of the petition was that the state court proceed no further, except to make the order of removal, as required by law. Accompanying the said petition was a sufficient bond, as provided by the statute. This prayer was denied. The defendant was required to and did answer, and the case came regularly on for trial, resulting in a verdict for plaintiff, and the cause has been lodged in this court for review.

¶2 Counsel for defendant present the denial of removal by the state court as ground for reversing or setting aside the judgment rendered herein. It is contended by counsel for plaintiff that the question is not properly preserved, because the petition for removal is not a part of the judgment roll, and that, in order to make it a part of the record on appeal, the petition and proceedings with respect thereto should be incorporated into a bill of exceptions, and also that if the question is properly raised the case was not removable. In neither of these contentions are we able to concur. The record before us is a case- made, which, for this purpose, takes the place of a bill of exceptions. Plaintiff's petition, the petition for removal, and the bond are all made part of the case-made, duly certified by the trial judge, and are regularly before us for our consideration. Where such is the case, a bill of exceptions is not necessary in order to save the appeal record. Burdick's New Trials and Appeals, sec. 207, and cases cited; Leavenworth, Northern & Southern Ry. Co. v. Herley et al., 45 Kan. 535, 539, 26 P. 23; Shumaker et at. v. O'Brien, 19 Kan. 476.

¶3 On the question of whether this action was removable or not, we think there can be no doubt. In at least three cases decided by this court, the question has been passed upon, all adversely to plaintiff's contention. Choctaw, O. & G. Ry Co. v. Burgess, 21 Okla. 110, 95 P. 606; Bolen-Darnell Coal co. v. Kirk, 25 Okla. 273, 106 P. 813, 26 L.R.A. (N.S.) 270; Western Coal & Mining Co. et al. v. Osborne, 30 Okla. 235, 119 P. 973. The question presented to the trial court in this case was simply one of fact, which all of the later federal as well as state courts hold is determinable only by the federal Circuit Court, the rule being that when a petition for removal is filed, accompanied by proper bond, the only question then presented for determination by the state court is one of law arising on the sufficiency of the petition. And where the question of the right of removal arises out of the facts averred, the question cannot be tried in the state court, but jurisdiction to hear and determine it is transferred to and vested in the federal court to which the removal is sought. This statement of the rule appears to meet with the sanction of all of the courts which have latterly had occasion to pass on the same. See Black's Dillon on Removal of Causes, secs. 191, 192; Moon on the Removal of Causes, sec. 177; 10 Ency. of U.S. Supreme Court Reports, 703; 34 Cyc. 1305, where the cases are collected.

¶4 Discussing the apparent conflict which exists between the authorities on the question of jurisdiction to determine the right of removal in section 191, Black's Dillon on the Removal of Causes, supra, it is said:

"In regard to the question whether the state court or the federal court is invested with jurisdiction to determine upon the removability of the cause, and the regularity and sufficiency of the steps which have been taken to effect its removal, there is much apparent conflict between the authorities. But they may be nearly all reconciled, and the true rules evolved, by paying due attention to the difference between questions of fact and questions of law, and to the nature of the questions which present themselves to the state court and the federal court, respectively, upon an application for removal. In the first place, it is settled beyond any manner of doubt that questions of fact arising upon an application for the removal of a cause are to be tried and determined in the federal court alone. Issues of fact upon the petition cannot be raised in the state court. That court must take the facts to be as they are stated in the record and the petition; it has no jurisdiction to pass upon any such questions; that is the exclusive province of the federal court, citing Stone v. South Carolina, 117 U.S. 430, 6 S. Ct. 799 ; Burlington, C. R. & N. R. Co. v. Dunn, 122 U.S. 513, 7 S. Ct. 1262 ; Crehore v. Ohio & M. R. Co., 131 U.S. 240, 9 S. Ct. 692 ; Sinclair v. Pierce [C. C.] 50 F. 851; Waite v. Phoenix Ins. Co. [C. C.] 62 F. 769; Powers v. Chesapeake & O. R. Co. [C. C.] 65 F. 129; Fidelity Trust Co. v. Newport News & N. V. Co. [C. C.] 70 F. 403. For example, if any question is raised as to the actual citizenship of either of the parties, when the removability of the case depends .upon the diversity of their citizenship, this issue is triable only m the federal court; the state court must assume that the facts as to citizenship are as they appear in the record and are alleged in the petition for removal; and it cannot receive and consider any evidence to the contrary, citing Carson v. Hyatt, 118 U.S. 279, 6 S. Ct. 1050 ; Kansas City, Ft. S. & M. R. Co. v. Daughtry, 138 U.S. 298, 11 S. Ct. 306 ; De Wolf v. Rabaud, 1 Pet. 476 ."

¶5 On the procedure proper to be followed by a state court on the filing of an application for removal, when the same is duly and seasonably made, the same authority, at section 192, says:

"When an application for the removal of a cause from a state court to a federal court is duly and seasonably made by the filing of a proper and sufficient petition and bond, and the removal papers, in connection with the record, show that the case is within the act of Congress, it is the duty of the state court, under the statute, to 'accept said petition and bond and proceed no further in such suit.' All rightful jurisdiction of the state court over the cause immediately ceases. It makes no difference whether that court grants or refuses an order of removal. Its jurisdiction being at an end, any further step taken in the cause in that court, or any order, judgment, or decree made by it, is erroneous and voidable, if not absolutely void. And however long the question of the removability of a suit may be litigated in the federal courts, and although those courts may ultimately decide to remand it to the state court, no valid action or proceeding can be taken in the state court before the remand."

¶6 The same doctrine is announced at section 177 of Moon on the Removal of Causes, as follows:

"The later decisions deny to the state court all authority to inquire in. to the truth of the facts alleged in the petition for removal. Its statements of the facts of the case, no matter whether true or false, must be accepted as true by the state court. The plaintiff may, in the Circuit Court of the United States, question the truth of the petition for removal; but he cannot be heard to do so in the state court."

¶7 In addition to the authorities cited in support of the texts above noted, we note the following: Postal Telegraph Cable Co. v. Southern Ry. Co. (C. C.) 88 F. 803; Carson v. Hyatt et al., 118 U.S. 279, 6 S. Ct. 1050, 30 L. Ed. 167; Kansas City, Ft. S. & M. R. Co. v. Daughtry, 138 U.S. 298, 11 S. Ct. 306, 34 L. Ed. 963.

¶8 On this question Circuit Judge Simonton of the Circuit Court for the Western District of North Carolina, in the case of Postal Telegraph Cable Co. v. Southern Ry. Co., supra, said:

"The petition for removal, with proper bond,

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