Digby v. United States Fidelity & Guaranty Company

• Decision Date: 04 January 1957
• Docket Number: No. 16159.,16159.
• Citation: 239 F.2d 569
• Parties: Willie Lee DIGBY, Appellant, v. UNITED STATES FIDELITY AND GUARANTY COMPANY, Appellee.
• Court: U.S. Court of Appeals — Fifth Circuit

239 F.2d 569 (1957)

Willie Lee DIGBY, Appellant, v. UNITED STATES FIDELITY AND GUARANTY COMPANY, Appellee.

No. 16159.

United States Court of Appeals Fifth Circuit.

January 4, 1957.

John T. Gano, Fort Worth, Tex., Clint A. Barham, Dallas, Tex., for appellant.

Curtis White, Dallas, Tex., for appellee.

Before RIVES, TUTTLE and CAMERON, Circuit Judges.

TUTTLE, Circuit Judge.

This appeal from a judgment of the trial court dismissing appellant's suit under the Texas Workmen's Compensation Law, Vernon's Ann.Civ.St. art. 8306 et seq., presents two questions: (1) Whether the alleged failure of the appellant to institute and prosecute his suit within twenty days would deprive the trial court of jurisdiction over the lawsuit, and (2) whether the evidence and affidavits furnished sufficient basis for the trial court's decision that there was a failure to prosecute the suit.

If the motion to dismiss the suit on the ground that the Texas court from which it was removed to the federal district court did not acquire jurisdiction of the subject matter because of a failure to comply with the statutory requirements truly addressed itself to the lack of jurisdiction of the court, then that issue could properly be tried by the court without a jury. Hardin v. McAvoy, 5 Cir., 216 F.2d 399, 403.¹

The suit was in the District Court by removal from the Texas state court. It had been filed by a workmen's compensation claimant who was not willing to abide by the final ruling of the Industrial Accident Board and had given due notice of such fact. Thereupon the following provision of the Texas statute became applicable:

"If any party to such final ruling and decision of the Board, after having given notice as above provided, fails within said twenty (20) days to institute and prosecute a suit to set the same aside, then said final ruling and decision shall be binding upon all parties thereto." Rev.Civ. Stat.Tex. art. 8307, § 5, Vernon\'s Ann.Civ.St. art. 8307, § 5.

The record discloses that the suit was filed in the State court on September 19, 1955, two days after the notice, but that citation thereon was not issued by the clerk of the district court of Dallas County until October 24, 1955. After removal to the federal court appellee filed its motion to dismiss, alleging a lack of jurisdiction by reason of the following circumstances: Upon the filing of the suit the clerk was instructed not to issue citation thereon; these instructions were changed on October 24th and citation issued. It is contended that such delay in "prosecuting the suit" for more than 20 days after giving notice deprived the court of jurisdiction to entertain the action.

Of course this motion is taken as an attack on the jurisdiction of the state court over the subject matter and not as an attack on the jurisdiction of the federal court as such since upon removal the federal court's jurisdiction over the subject matter is limited to that which could be acquired by the state court before removal.

Our determination whether this is a jurisdictional question or merely an attempt to interpose a plea of the statute of limitations must depend upon the Texas law, although appellant here seems not to question the assertion that compliance with the terms of the statute must be shown in order to confer jurisdiction on the trial court. Appellant says in his brief: "The question here presented to this Honorable Court is one of jurisdiction alone and not limitation." To be absolutely certain that this was not an unintended concession by counsel we inspect the Texas cases cited by appellant to support his legal theory of the case. The decision cited immediately preceding the language quoted above is Maryland Casualty Co. v. Jones (Texas Commission of Appeals, opinion adopted by the Texas Supreme Court), 129 Tex. 392, 104 S.W. 2d 847, 849. The following passages are quoted from that case in appellant's brief here:

"Many cases involving the question of the tolling of ordinary statutes of limitation by the filing of a petition with direction to the clerk to withhold the issuance of citation are cited and relied upon. We do not find it necessary to consider or discuss these cases, because the question is not whether ordinary limitation statutes were tolled, but whether the court acquired any jurisdiction. * * *

"Of course, there must be a bona fide intention to prosecute the suit, which must be evidenced by acts of the party filing same, an undisclosed intention not being sufficient.

"In the instant case it clearly cannot be held, as a matter of law, that the employee had no bona fide intention to prosecute his suit at the time he filed his petition."

We think it clear that the Texas decisions unvaryingly...