Floody v. Chicago, St. Paul, Minneapolis & Omaha Railway Co.
| Citation | 116 N.W. 111,104 Minn. 132 |
| Decision Date | 24 April 1908 |
| Docket Number | 15,713 |
| Parties | THOMAS F. FLOODY v. CHICAGO, ST. PAUL, MINNEAPOLIS & OMAHA RAILWAY COMPANY and Another |
| Court | Supreme Court of Minnesota (US) |
Appeal by defendant Edward S. Wood from an order of the district court for Ramsey county, Hallam, J., that the action was at issue upon the complaint and answer, and not upon defendant's demurrer, and that the demurrer be stricken from the files. The facts are stated in the opinion. Affirmed.
Removal of Cause.
Where a cause is erroneously removed from a state court to the circuit court of the United States, and thereafter remanded to the state court, all orders made in the case by the circuit court, except the one remanding the case, are void for want of jurisdiction.
Pierce Butler, Pfau & Pfau, and Nelson J. Wilcox, for appellant.
Humphrey Barton and John H. Kay, for respondent.
The defendant Wood appealed from an order of the district court of the county of Ramsey, wherein it was ordered that this action was at issue upon the complaint and answer of the defendant Wood, and not upon his alleged demurrer, and that such demurrer be stricken from the files of the court. The order appealed from is in effect one striking out the defendant's alleged demurrer. This is a motion to dismiss the appeal, because the order is not appealable, and on the further ground that, if the order is appealable, the appeal in this case is frivolous.
An order striking out a pleading, or any material part thereof is appealable; but one refusing to strike out is not. The rule applies to a demurrer. Vermilye v. Vermilye, 32 Minn. 499, 18 N.W. 832, 21 N.W. 736; Olsen v. Cloquet Lumber Co., 61 Minn. 17, 63 N.W. 95. The only question, then, for our consideration, is whether the appeal is frivolous. If the record shows that the alleged demurrer was in fact a part of the pleadings in this case, then the appeal cannot be dismissed as frivolous; for, if such be the case, it is not apparent without argument that the demurrer was properly stricken out. Johnson v. St. Paul City Ry. Co., 68 Minn. 408, 71 N.W. 619; Kennedy v. Fidelity & Casualty Co., 100 Minn. 144, 110 N.W. 624. If, however, the record shows that the demurrer was no part of the pleadings, it is perfectly manifest that it was properly stricken from the files, and that the appeal is frivolous; for the basis of the trial court's order striking out the alleged demurrer was not that it was frivolous, but because it was no part of the pleadings. The question, then, reduced to its lowest terms, is this: Does the record show that the demurrer was no part of the pleadings in this action?
The here material facts, as shown by the record on this appeal are these: The action was commenced in the district court of the county of Ramsey, Minnesota, by service of the summons, on August 16, 1907, against the defendant railway company and Edward S. Wood, the appellant herein, to recover damages for personal injuries sustained by the plaintiff by the alleged negligence of the defendants. On September 4, 1907, there were filed in this action, in the district court, the original separate answer of the defendant Wood, entitled in that court, upon which was indorsed an admission of service by the plaintiff's attorney, and a petition and bond of the defendant railway company for the removal of the cause to the circuit court of the United States for the District of Minnesota. Other than as stated, it does not appear from the return on this particular appeal whether the answer of Wood was filed before or after, or at the same time, that the petition for removal was filed. A transcript of the record in the district court was filed in the circuit court, and thereafter, and on December 2, 1907, the defendant Wood made an ex parte application, by his attorneys in this cause, to the circuit court for "leave to withdraw his answer, heretofore filed in said cause, and for leave to file a demurrer to said complaint." The circuit...
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