Deming v. Carlisle Packing Company
| Decision Date | 02 December 1912 |
| Docket Number | No. 511,511 |
| Citation | 57 L.Ed. 140,226 U.S. 102,33 S.Ct. 80 |
| Parties | E. B. DEMING, Deming-Gould Company, and Pacific American Fisheries, Plffs. in err., v. CARLISLE PACKING COMPANY |
| Court | U.S. Supreme Court |
Messrs. James A. Kerr and E. S. McCord for plaintiffs in error.
Messrs. Aldis B. Browne, Charles W. Dorr, S. M. Bruce, and Hiram E. Hadley for defendant in error.
The Carlisle Packing Company, a corporation of the state of Washington, sued in a court of that state Deming and the two corporations who, with him, are the plaintiffs in error on this record. Deming was a citizen and resident of the state of Washington, and the corporations were alleged to be citizens of states other than Washington. The defendants were sued jointly for a violation by them of a contract alleged to have been jointly made for the purchase of salmon. There was a joint answer by the defendants, putting at issue the material allegations of the complaint. There was a jury trial. When the Carlisle Company rested, motions for nonsuit were separately made on behalf of each of the defendants and were overruled.
After the defendants had offered their proof and the case was ripe for submission, the counsel for the two corporate defendants presented a petition and bond for the removal of the cause to the proper Federal court, and asked that the bond be approved and further proceedings be stayed. The asserted right to remove proceeded upon the assumption that Deming had been fraudulently joined as a defendant for the purpose of preventing the two nonresident defendants from removing the case. This was supported by the contention that the proof as offered left no doubt that Deming had made the contract declared on merely as the agent of the two corporations, and was therefore not personally bound. In denying the petition to remove, the trial judge directed attention to the fact that the motion made at the close of the plaintiff's proof for a nonsuit in favor of Deming had been denied because the court was of opinion that there was evidence to go to the jury on the question of the liability of that defendant, and further observed that the situation in this respect had not been altered by the testimony introduced for the defendants. The cause was submitted to the jury upon instructions which, among other things, left it open to find against less than all of the defendants if the jury believed that the contract had not been made with all. There was a verdict for the plaintiff against all the defendants, and a judgment entered thereon was affirmed by the supreme court of the state. 6i Wash. 455, 114 Pac. 172. The appellate court, among other things, decided that no error had been committed in overruling the motions for nonsuit and in denying the petition to remove, and in substance held that the plaintiff had the right to join Deming as a party defendant.
The prosecution of this writ of error is based upon the assumption that a Federal question was involved in the refusal to grant the petition for removal. In view, however, of the well-settled and, indeed, now elementary doctrine that although a record may present in form a Federal question, a motion to dismiss will be allowed where it plainly appears that the Federal question is of such an unsubstantial character as to cause it to be devoid of all merit, and therefore frivolous, we think it is our duty to grant a motion to dismiss which has been here made. We reach this conclusion because the case was not a removable one when it was called for trial. Not being removable before trial, the plaintiff had the right to have the issues of fact and law raised determined in the state court which had jurisdiction over the cause. This power could not be destroyed by the mere act of the defendants, or one of them, in asking a removal based upon the assumption that if the evidence in the case was properly weighed and the legal principles applicable were correctly applied there would result a condition from which a right to remove would arise. On its face the assertion of such a right involved two propositions, whose unsubstantial character is made manifest by their mere statement: (a) That the state court had jurisdiction over the cause, but had no right to exercise that jurisdiction; (b) that a Federal court could endow itself with jurisdiction over a cause to which its authority did not extend by disregarding the pleadings and wrongfully assuming the right to revise the decision of the state court on matters of an absolutely non-Federal character which that court had the right to decide. Nor is there force in the suggestion that the right to remove under the circumstances stated finds support in the ruling in Powers v. Chesapeake & O. R. Co. 169 U. S. 92, 42 L. ed. 673, 18 Sup. Ct. rep. 264, since in that case a separable controversy on the face of the record arose at the opening of the trial, consequent on the discontinuance by the plaintiff of his action as against the resident defendant whose joinder had, up to that time, made the action nonremovable. The difference between that case, and the one here presented is apparent, and, at the time the petition for removal was presented and this writ of error was sued out, had been pointed out in decisions of this court. Whitcomb v. Smithson, 175 U. S. 635, 44 L. ed. 303, 20 Sup. Ct. Rep. 248; Alabama G. S. R. Co. v. Thompson, 200 U. S. 206, 217, 50 L. ed. 441, 447, 26 Sup. Ct. Rep. 161, 4 Ann. Cas. 1147; Illinois C. R. Co. v. sheegog, 215 U. S. 308, 54 L. ed. 208, 30 Sup. Ct. Rep. 101.
Dismissing the writ of error, as we shall therefore do for the reasons stated, it remains to consider whether we should grant a prayer for damages for delay which has been made. That the unsubstantial and frivolous character of the only Federal question relied upon of necessity embraces the conclusion that the writ was prosecuted for delay is, in our opinion, indubitable. Does the power to award damages for delay exist where a writ of error is dismissed because of the unsubstantial and frivolous character of the asserted Federal right and the conclusive inference that the writ was prosecuted for mere delay, which arises from sustaining such ground for dismissal? is then the question. That the comprehensive text of rule 23, embracing, as it does, 'all cases' where a writ of error shall appear to have been sued out for mere delay, brings this case within its purview, is obvious. But as the power which the rule expresses depends upon Rev. Stat. § 1010 (U. S. Comp. Stat. 1901, p. 715), we must consider the subject in the light of the...
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