Crehore v. Ohio Ry Co

• Decision Date: 13 May 1889
• Citation: 9 S.Ct. 692,33 L.Ed. 144,131 U.S. 240
• Parties: CREHORE v. OHIO & M. RY. CO
• Court: U.S. Supreme Court

131 U.S. 240

9 S.Ct. 692

33 L.Ed. 144

CREHOREv.OHIO & M. RY. CO.

May 13, 1889.

Lawrence Maxwell, Jr., for the motion.

[Argument of Counsel from pages 241-242 intentionally omitted]John Mason Brown, contra.

Mr. Justice HARLAN, after stating the facts in the foregoing language, delivered the opinion of the court.

This action was brought by the plaintiff in error, who was the plaintiff below, in the Louisville (Kentucky) Law and Equity Court, against the Ohio and Mississippi Railway Company, to recover damages for personal injuries alleged to have been sustained by him, while a passenger upon the road of that company, by reason of the wilful neglect of those by whom it was operated.The company, on the 24th of November, 1884, filed its petition, accompanied by bond in proper form, for the removal of the case, upon the ground of the diverse citizenship of the parties, into the Circuit Court of the United States for the District of Kentucky.Thereupon an order was made by the state court that it would proceed no further.The case was docketed and tried in the Circuit Court of the United States, and resulted in a verdict for the defendant, followed by a judgment dismissing the plaintiff's petition.From that judgment the plaintiff prosecuted a writ of error.

At the argument in this court at present term, attention was called to the fact that the record did not sufficiently show the citizenship of the parties at the commencement of the action, as well as at the time of the application for removal.Stevens v. Nichols,130 U.S. 230.Upon this ground an order was entered reversing the judgment of the Circuit Court, and remanding the cause, with directions that it be sent back to the state court.The case is again before us upon a motion in behalf of the railway company, that the judgment of reversal be so framed as to omit therefrom an absolute direction to the Circuit Court to remand the cause to the state court, to the end that the defendant may take steps for the correction and amendment of the petition for removal, and of the record and proceedings in that behalf.

It is conceded that the record does not show affirmatively the citizenship of the parties at the commencement of the action in the state court, and that the judgment, for that reason, must be reversed.

Upon the filing by either party, or by any one or more of the plaintiffs or defendants, 'entitled to remove any suit' mentioned in the first or second sections of the act of March 3, 1875, (18 St. 470,) of the petition and bond required by it third section, 'it shall then be the duty of the state court to accept said petition and bond, and proceed no further in such suit.'The effect of filing the required petition and bond in a removable case is, as said in Railroad Co. v. Mississippi, 102 U. S. 135, 141, that the state court is thereafter 'without jurisdiction' to proceed further in the suit; or in Railroad Co. v. Koontz, 104 U. S. 5, 14, its rightful jurisdiction comes to 'an end;' or in Steam-Ship Co. v. Tugman, 106 U.S. 118, 122, 1 Sup. Ct. Rep. 58, 'upon the filing, therefore, of the petition and bond—the suit being removable under the statute—the jurisdiction of the state court absolutely ceased, and that of the circuit court of the United States immediately attached.'It has also been repeatedly held, particularly in Stone v. South Carolina, 117 U. S. 430, 432, 6 Sup. Ct. Rep. 799, following substantially Rai road Co. v. Koontz, that 'a state court is not bound to surrender its jurisdiction of the suit on a petition for removal until a case has been made which on its face shows that the petitioner has a right to the transfer;' and that 'the mere filing of a petition for the removal of a suit, which is not removable, does not work a transfer.To accomplish this the suit must be one that may be removed, and the petition must show a right in the petitioner to demand the removal.This...