Ellis v. Atlantic & P. R. Co.

• Decision Date: 02 March 1883
• Citation: 134 Mass. 338
• Parties: Clara E. Ellis, administratrix, v. Atlantic and Pacific Railroad Company
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

134 Mass. 338

Clara E. Ellis, administratrix, v. Atlantic and Pacific Railroad Company

Supreme Court of Massachusetts

March 2, 1883

Argued October 26, 1882

Bristol. Tort against a corporation alleged in the writ to be established under the laws of the United States, for an injury sustained by the plaintiff's intestate, an employee of the corporation, by the defective condition of its road-bed. The writ was dated April 1, 1882, and returnable to the Superior Court next to be holden on the first Monday of June. The ad damnum was stated in the writ at $ 25,000.

On June 14, 1882, the defendant filed a petition for the removal of the case into the Circuit Court of the United States "next to be holden within and for the District of Massachusetts," alleging that the defendant was a corporation incorporated under a law of the United States and was not a banking corporation, and that the plaintiff resided in New Bedford in the county of Bristol; that the matter in dispute, exclusive of costs, exceeded the sum of $ 500; that the defendant had a good and valid defence to said action under and by virtue of a law of the United States namely, its act of incorporation of July 27, 1866, and other laws of the United States relating to said corporation. The petition was verified by the oath of the president of the corporation. On the same day the defendant filed a bond, with two sureties, in the sum of $ 500, which contained the following condition: "The condition of this obligation is such, that whereas heretofore, to wit, on the first day of April last, said Clara E. Ellis, administratrix, commenced an action at law against said Atlantic and Pacific Railroad Company, which action is returnable to the Superior Court of the Commonwealth of Massachusetts for the county of Bristol at the June term thereof A. D. 1882, and said defendant being a corporation incorporated and organized under the laws of the United States, and having a defence to said action arising under and by virtue of a law of the United States, as it has duly declared under oath as required by law of the United States, desires and has petitioned the court for the removal of said action to the Circuit Court of the United States for the District of Massachusetts: Now therefore, if the above bounden party defendant in said action shall enter in such Circuit Court, on the first day of its session next after the granting of said petition, a copy of the record in said suit, and shall pay all costs that may be awarded by said Circuit Court, if said court shall hold that said suit was wrongfully or improperly removed thereto, and shall appear in said suit, then this obligation shall be void, otherwise shall remain in full force and virtue."

On July 11, 1882, the Superior Court granted the petition; and the plaintiff appealed to this court.

Order of the Superior Court removing cause Affirmed.

T. M. Stetson, for the plaintiff.

G. Marston, for the defendant.

Field, J. C. Allen, Colburn & Holmes, JJ., absent.

OPINION

Field, J.

The petition for removal was filed in the Superior Court on June 14, 1882, and was allowed by that court on July 11, 1882. From the order allowing this petition the plaintiff appeals to this court. It does not appear that any rulings were requested of the presiding justice of the Superior Court, or that any exceptions were taken to any rulings made by him. Two questions have been argued in this court: first, whether an appeal lies to this court from the order of the Superior Court granting the petition; and second, whether the defect in the condition of the bond is a reason why the petition should not be granted.

It is said that all questions of law which have been brought to this court by any party dissatisfied with an order of the Superior Court, or of a justice of this court, refusing or granting a petition for the removal of a cause to the Circuit Court of the United States, have been brought here either by exceptions or by report. Bryant v. Rich, 106 Mass. 180, 191. Commonwealth v. Casey, 12 Allen 214. Morton v. Mutual Life Ins. Co. 105 Mass. 141. Du Vivier v. Hopkins, 116 Mass. 125. Tapley v. Martin, 116 Mass. 275. Florence Sewing Machine Co. v. Grover & Baker Sewing Machine Co. 110 Mass. 70. Stone v. Sargent, 129 Mass. 503. Mahone v. Manchester & Lawrence Railroad, 111 Mass. 72. Broadway National Bank v. Adams, 130 Mass. 431. Danvers Savings Bank v. Thompson, 130 Mass. 490.

This court has jurisdiction of "questions of law on exceptions, on appeals from the Superior Court, on cases stated by the parties, and on special verdicts," &c. Pub. Sts. c. 150, § 7. In regard to appeals from the Superior Court, it is provided that "a party aggrieved by a judgment founded upon matter of law apparent on the record in any proceeding, civil or criminal, except a judgment upon an answer or plea in abatement or motion to dismiss for defect of form of process, may appeal therefrom to the Supreme Judicial Court," &c. Pub. Sts. c. 152, § 10. Before the appeal can be entered in this court, there must first be a final disposition of the whole case in the Superior Court. Riley v. Farnsworth, 116 Mass. 223.

It is obvious that an order or judgment of the Superior Court refusing to grant a petition for the removal of an action to the Circuit Court of the United States, is not a final judgment disposing of the whole case in the Superior Court. The case still remains in the Superior Court, to be determined there. But an order allowing such a petition, and removing the cause, does dispose of the whole case in the Superior Court. Nothing...