Ft. Smith & W. R. Co. v. Blevins
Decision Date | 28 January 1913 |
Docket Number | Case Number: 2867 |
Citation | 35 Okla. 378,1913 OK 69,130 P. 525 |
Court | Oklahoma Supreme Court |
Parties | FT. SMITH & W. R. CO. v. BLEVINS. |
¶0 1. REMOVAL OF CAUSES--Increase or Ad Damnum. Where plaintiff amends his petition, increasing the amount sued for so as to constitute a removable cause to the proper federal court, the right to remove is thereby given, and, if the defendant by proper application in due time avails itself of that right, it cannot be denied.
(a) Where the defendant, resident of another state, regularly and strictly in accordance with Act Cong. Sept. 24, 1789, c. 20, 1 St. at L. 73, known as the "Judiciary Act," as amended by Act March 3, 1887, c. 373, 24 St. at L. 552, and by Act. Aug. 13, 1888, c. 866, 25 St. at L. 433 (U. S. Comp. St. 1901, p. 508), files his petition in the state court for the removal of the cause to the United States Circuit Court, and a sufficient bond, which is offered for the approval of the state court, the said court is ipso facto ousted of jurisdiction; and whether an order for removal is granted or denied by the state court, all further proceedings therein are coram non judice and void.
2. REMOVAL OF CAUSES--Actions Under Employer's Liability Act. Act April 5, 1910, c. 143, 36 St. at L. 291 (U. S. Comp. St. Supp. 1911, p. 1324), section 6 of the Employer's Liability Act (Act April 22, 1908, c. 149, 35 St. at L. 66 [U. S. Comp. St. Supp. 1909, p. 1173]), so as to provide that the jurisdiction of the courts of the United States under said act shall be concurrent with that of the courts of the several states, and no case arising thereunder and brought in any state court of competent jurisdiction shall be removed to any court of the United States, has no application to actions brought prior to the amendment.
Error from District Court, Okfuskee County; John Caruthers, Judge.
Action by Robert L. Blevins against the Ft. Smith & Western Railroad Company. Judgment for plaintiff, and defendant brings error. Reversed and remanded.
C. E. & H. P. Warner, for plaintiff in error.
Winston T. Banks, for defendant in error.
¶1 This proceeding in error seeks to review the judgment of the trial court wherein the defendant in error, as plaintiff, sued the plaintiff in error, as defendant, to recover for personal injuries. By petition filed January 19, 1909, plaintiff alleged injuries to have been sustained by him on May 21, 1909, as a result of the negligence of the defendant in the sum of $ 1,999.90 whilst in the employ of the said defendant, on a work train, assisting in ditching the sides of its track and removing the dirt to fills, and doing such other things connected with the work as he was directed by the defendant's foreman in charge. At the first trial on May 10, 1910, a verdict was rendered for plaintiff in the sum of $ 300. Plaintiff moved for a new trial. This motion being concurred in by the defendant the same was granted; the plaintiff being given twenty days to file an amended petition. On May 26, 1910, plaintiff filed such amended petition to recover in the sum of $ 1,999.90. On February 15, 1911, the case was called for trial, and plaintiff, upon application, was given leave to amend his petition by changing the general allegation to read that the plaintiff had been damaged in the sum of $ 12,250 instead of $ 1,999.90, and changed the prayer in said petition and asked for the recovery of $ 12,000 damages and $ 250 expenses and medical aid, making a total of $ 12,250, instead of $ 1,999.90, to which defendant excepted. Thereupon defendant was given until 1:30 p. m. o'clock to plead to the amended pleading. On the same day the defendant asked leave to file application to remove the cause to the federal court, and same was in due form with the required bond.
¶2 Where the plaintiff amends his petition increasing the amount or ad damnum, so as to constitute a removable cause, the right to remove is thereby given, and, if the defendant by proper application in due time avails itself of that right, it cannot be denied. Huskins v. Cincinnati, N. O. & T. P. Ry. Co., 37 F. 504, 3 L.R.A. 545; Cookerly v. Great Northern Ry. Co. (C. C.) 70 F. 277; Speckart v. German National Bank et al. (C. C.) 85 F. 12; Bailey v. Mosher et al. (C. C.) 95 F. 223. In Powers v. Chesapeake & Ohio Ry. Co., 169 U.S. 92, 18 S. Ct. 264, 42 L. Ed. 673, it was held that under Act Cong. March 3, 1887, c. 373, 24 St. at L. 552, Act Cong. 1789, c. 20, 1 St. at L. 73, known as the "Judiciary Act," as corrected by act Aug. 13, 1888, c. 866, 25 St. at L. 433 (U. S. Comp. St. 1901, p. 508), the right to remove could be exercised as soon as the pleadings on behalf of plaintiff were so amended as to show a removable cause, although as originally begun the action was not removable because the necessary diversity of citizenship or amount in controversy did not appear.
¶3 In Stevens et al. v. Phoenix Ins. Co., 41 N.Y. 149, it is held:
Where the defendant, citizen of another state, regularly, and strictly in accordance with act of Congress of 1789, known as the 'Judiciary Act,' files his petition in the state court for the removal of the cause to the United States Circuit Court, and a sufficient bond, which is offered for the approval of the state court, the state court is ipso facto ousted of jurisdiction; and, whether an order for removal is granted or denied by the state court, all further proceedings therein are coram non judice and void."
See, also, C., R. I. & P. Ry. Co. v. Brazzell, 33 Okla. 122, 124 P. 40; Western Coal & Mining Co. et al. v. Osborne, 30 Okla. 235, 119 P. 973; Bolen-Darnell Coal Co. v. Kirk, 25 Okla. 273, 106 P. 813, 26 L.R.A. (N.S.) 270; Choctaw, O. & G. R. Co. v. Burgess, 21 Okla. 110, 95 P. 606.
¶4 The foregoing proposition does not appear to be controverted by counsel on either side; both sides joining in stating that the trial court denied same on the theory that Act Cong. April 5, 1910, c. 143, 36 St. at L. 291 (U. S. Comp. St. Supp. 1911, p. 1324), passed to amend Employer's Liability Act April 22, 1908, c. 149, 35 St. at L. 65 (U. S. Comp. St. Supp. 1909, p. 1173; U.S. Comp. St. Supp. 1911, p. 1322), deprived defendant of such right of removal.
¶5 This identical question is passed on in Newell v. Baltimore & O. R. Co. (C. C.) 181 F. 698, wherein it is said:
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¶6 An act of the Indiana Legislature of 1853 (Acts of 1853, p. 113) authorized suits to be brought before a justice of the peace only, and hence the recovery was limited to $ 100; but by the amendatory act (Acts 1859, p. 105), where the damages exceed $ 50, the party may bring this suit in the circuit or common pleas court, and recover the value of the animal killed or injury inflicted. In the opinion it is said ( Indianapolis & Cincinnati R. Co. v. Kercheval, 16 Ind. 84):
See, also, Wright v. Southern Ry. Co. et al. (C. C.) 80 F. 260; Ranney v. Bostic, 15 Mo. 216; Murray v. Gibson, 15 HOW 421, 14 L. Ed. 755; N.Y. & O. M. R. Co. v. Van Horn, 57 N.Y. 473; McEwen et al. v. Den et al., 24 HOW 242, 16 L. Ed. 672; Rolater v. Strain, 31 Okla. 58, 119 P. 992; Good et al. v. Keel et al., 29 Okla. 325, 116 P. 777.
¶7 The cases of MaHarry v. Eatman, 29 Okla. 46, 116 P. 935, and Harris v. Gale (C. C.) 188 F. 712, do not militate against the rule announced by ...
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