Dunn v. Burlington, Cedar Rapids & Northern Railway Co.
| Decision Date | 12 March 1886 |
| Citation | 27 N.W. 448,35 Minn. 73 |
| Parties | Charles L. Dunn, an Infant, by his Guardian, v. Burlington, Cedar Rapids & Northern Railway Company |
| Court | Minnesota Supreme Court |
Plaintiff, a child eight years old, brought this action in the district court for Ramsey county, to recover damages for personal injuries. Before the trial, the defendant applied to Brill, J., for a removal of the cause to the United States circuit court, under the local-prejudice act, on which application the proceedings recited in the opinion were had and the application was denied. The defendant thereupon caused a copy of the record to be filed in the federal court and afterwards, the cause having come on for trial before the same judge with a jury, the defendant's counsel entered a special appearance, for the purpose of presenting to the court a transcript from the federal court, showing the filing in that court of a copy of the record, and of objecting to the jurisdiction of the district court to proceed further in the cause. The court overruled the objection, the defendant excepting, and the trial proceeded, resulting in a verdict of $ 50,000 for plaintiff. The exceptions taken during the trial are stated in the opinion.
The defendant having moved for a new trial, on the ground () of excessive damages, the motion was denied, upon plaintiff's consenting to a reduction of the verdict to $ 25,000. Judgment was entered on the verdict as thus reduced and the defendant appealed.
C. K. Davis and J. D. Springer, for appellant.
C. D. O'Brien, for respondent.
OPINION
The defendant, after this cause was at issue, seasonably filed its petition, affidavit, and bond for the removal of the action to the United States circuit court. The petition alleged that the defendant was a corporation organized under the laws of Iowa, and that plaintiff was, at the time of the commencement of the action, and still was, a citizen of the state of Minnesota. The plaintiff answered by affidavit, denying that he was a citizen of Minnesota, and alleging that he was, at the time his cause of action accrued, and ever since that time had been, and still was, a citizen of the territory of Montana. The allegation of the petition being thus denied, the court refused "to accept the security offered, and transfer the cause, until proof is made of the citizenship of the plaintiff." The defendant having offered no such proof, the court, against its objection and exception, proceeded to try the cause, and this is now assigned as error.
The contention of the defendant is that the court had no right to inquire as to whether or not the cause was in fact within the act of congress; that this was a question exclusively for the federal court upon a motion to remand; that by filing a petition and bond in due form, the cause was ipso facto removed, and the state court ousted of jurisdiction, and that it could proceed no farther; and that all its subsequent proceedings are void, as being without jurisdiction.
Of course no one will deny that if a cause has been removed, the state court is ousted of jurisdiction. But it seems to us that defendant's contention proceeds upon the false assumption that the filing of a petition and bond will work the removal of any cause. It is only when the action is within the statute that the filing of the petition and bond will remove it to the federal court. It is the existence of the facts making the cause removable which, upon compliance with the provisions of the statute, effects the removal. We speak of the federal court "remanding" a cause; but a motion to "remand" is equivalent to a special plea to the jurisdiction of the court, -- Mansfield etc., Ry. Co. v. Swan, 111 U.S. 379, (4 S.Ct. 510, 28 L.Ed. 462,) -- and an order "remanding" is but, in effect, a decision sustaining that plea, and holding that the federal court has no jurisdiction, either because the action is not within the statute, or because the requirements of the statute as to the mode of removal have not been complied with. And if the federal court never acquired jurisdiction, we fail to see how the state court could ever have lost it; and, so far as we can discover, whenever the supreme court of the United States have expressed themselves to the effect that upon filing the proper petition and bond the cause is removed, and the state court ousted of jurisdiction, the fact that the cause was within the statute either appeared or was assumed. Thus, in Kern v. Huidekoper, 103 U.S. 485, 26 L.Ed. 354, it is said: "If the cause is removable, and the statute for its removal has been complied with, no order of the state court," etc. So, in Steamship Co. v. Tugman, 106 U.S. 118, (1 S.Ct. 58, 27 L.Ed. 87,) it is said: "Upon the filing of the petition and bond, the suit being removable under the statute, the jurisdiction of the state court absolutely ceases;" and in Stone v. Sargent, 129 Mass. 503, Gray, C. J., says: "If the case is within the act of congress, and the proper petition, affidavit and surety are filed in the state court, the circuit court of the United States takes jurisdiction of the cause, although the state court omits, or even refuses, to make any order for its removal."
Of course, the removability of a cause is a federal question, upon which the decision of the supreme court of the United States is and must be controlling and conclusive. Hence, if the state court should decide that a cause was not removable, and proceed to try it, and the supreme court of the state should affirm, the supreme court of the United States would, upon a writ of error, reverse if they should be of the opinion that the cause was within the act of congress. But the same thing is true as to questions touching the sufficiency of the removal papers. These are equally federal questions, upon which the decisions of the state courts are not conclusive. Hence, if a state court should hold the bond or petition insufficient, or that they were not seasonably filed, and proceed to try the cause, and if the supreme court of the United States, upon the cause being brought up on a writ of error, should be of a contrary opinion, they would reverse the judgment of the state court. Stone v. Sargent, supra. Yet it seems to be well settled that the state court has a right to examine the petition and bond to see whether the requirements of the statute have been complied with, and need not let go its hold upon the case if this has not been done. Stone v. Sargent, supra; Amory v. Amory, 95 U.S. 186, 24 L.Ed. 428.
But we can see no distinction in principle between a case where the state court assumes to examine the removal papers to see whether the statute has been complied with and a case where it assumes to inquire whether the cause itself is within the statute. The question in each case is equally a federal one, upon which the decision of the state court is not conclusive; and in each case alike, if the state court decides in favor of its own jurisdiction, it does so at the peril of its subsequent proceedings being held void in case the federal court takes a different view of the question.
For this reason, and to avoid any appearance of conflict between the two judicial systems, it would usually be expedient for the state court to decline to proceed with a cause until the federal court has passed upon the question as to whether it is within the act of congress; but this would be equally so in cases where there was doubt as to whether the requirements of the statute as to the mode of removal had been complied with.
But there may be cases where, to prevent the practice of imposition upon the court, or to defeat a dilatory motion, a state court might deem it advisable to inquire as to the existence of the facts alleged in the petition upon which the right of removal depends. It seems to us it has the right to do this, and, if satisfied that the cause is not in fact within the statute, it may proceed to try it, at the risk, of course, of its proceedings being held void, should the supreme court of the United States be of a different opinion, precisely as in a case where the state court assumes to pass upon the sufficiency of the removal papers.
Take the present case for example. As appears from the evidence elicited on the trial, this family had formerly resided in the state of West Virginia. In August, 1883, the father and husband moved out to Glendive, Montana, and entered into the employment of the Northern Pacific Railroad Company at that place, where he has ever since and still resides. At the time of this accident, in February, 1884, the wife and minor children were on their way from West Virginia to join the husband and father at Glendive, at which place they did join him as soon as this child's injuries permitted them to resume their journey, and at which place they have ever since been and still are domiciled. On such a state of facts there would be no foundation whatever for the allegation that plaintiff was or is a citizen of Minnesota; and if the showing were the same, there could be no doubt that the United States circuit court would, on motion, remand. And yet, if defendant's position be sound, it would lead to the illogical result that, in the same cause which the federal court remanded because it had no jurisdiction, the judgment of the state court would be void because it had been ousted of jurisdiction.
So far as we have been able to discover, wherever a state court has refused to "allow" a removal and proceeded to the trial of the cause, and it has been afterwards removed to the supreme court of the United States, that court has treated and disposed of the case in the same manner, whether it turned upon the sufficiency...
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