Clark v. Chicago, M. & St. P. Ry. Co.

• Citation: 11 F. 355
• Parties: CLARK, by Guardian, etc., v. CHICAGO, M. & ST. P. RY. CO. SWEET'S ADM'RS v. CHICAGO, M. & ST. P. RY. CO.
• Decision Date: 01 April 1882
• Court: U.S. District Court — District of Minnesota

11 F. 355

CLARK, by Guardian, etc., v. CHICAGO, M. & ST. P. RY. CO.

SWEET'S ADM'RS v. CHICAGO, M. & ST. P. RY. CO.

United States Circuit Court, D. Minnesota.

April, 1882

Lovely & Morgan, for plaintiff.

Cameron Losey & Bunn, for defendant.

NELSON D.J.

The plaintiff, Ethan A. Clark, by guardian, commenced an action December 1, 1880, in a court of the state of Minnesota against the Chicago, Milwaukee & St. Paul Railway Company and the Southern Minnesota Railway Company, to recover damages for a personal injury. The action is one sounding in tort. The complaint alleges the defendants are joint wrong-doers, and sets up that the defendant the Chicago Milwaukee & St. Paul Railway Company is a Wisconsin corporation, and the defendant the Southern Minnesota Railway Company is a Minnesota corporation. The former demurred to the complaint; the latter answered. At the January term of the said state court, 1881, being the first term after the action was commenced, the Wisconsin corporation filed a petition for removal, setting forth in substance that the plaintiff was a citizen of the state of Minnesota, and that the petitioner was a corporation existing and organized under the laws of the state of Wisconsin; that the amount in dispute exceeded the sum of $500, and that this action is one in which there can be a final determination of the controversy, so far as concerns the petitioner, without the presence of the other defendant as a party to the cause, and alleged that the petitioner files and presents a bond, with good and sufficient surety, for entering in the circuit court of the United States for the district of Minnesota, on the first day of the next session, copies of all process, pleadings, depositions, and testimony in the cause concerning or affecting your petitioner, etc.; and finally asks 'that this cause proceed no further in the state court as against your petitioner, and that this cause be removed as against your petitioner into the circuit court of the United States for the district of Minnesota.

The following order was entered by the state court:

'Ordered, that this cause be and the same is removed into the circuit court of the United States for the district of Minnesota, so far as the said petitioner is concerned, leaving the same to proceed in this court as against the defendant the Southern Minnesota Railway Company.'

The petitioner followed, in drafting the petition, the language contained in the second subdivision of section 639 of the Revised Statutes, and the state court manifestly supposed that the removal was applied for under that subdivision only. The record filed in this court February 26, 1881, contains only the petition and bond, complaint and amended complaint, and the demurrer interposed by the defendant petitioner.

A motion to remand is made by the plaintiff, and it is urged:

'First. That the attempt to sever the controversy, and to remove a portion thereof into the federal court, did not deprive the state tribunal of its jurisdiction over the whole.'

The purpose of the order of the state court undoubtedly was to part with jurisdiction only so far as the controversy concerned and affected the non-resident petitioners, and intended to retain the same and determine the controversy so far as it concerned the resident corporation. In other words as its action is expressed by the order made, it attempted to split the suit, upon the view entertained that the second subdivision of section 639, Rev. St., embracing the provisions of the law of 1866, was still in force. This subdivision, however,...