Ft. Smith & W.R. Co. v. Blevins

• Decision Date: 28 January 1913
• Citation: 130 P. 525,35 Okla. 378,1913 OK 69
• Parties: FT. SMITH & W. R. CO. v. BLEVINS.
• Court: Oklahoma Supreme Court

130 P. 525

35 Okla. 378, 1913 OK 69

FT. SMITH & W. R. CO. v. BLEVINS.

Supreme Court of Oklahoma

January 28, 1913

Syllabus by the Court.

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 Stat. 73, known as the "Judiciary Act," as amended by Act March 3, 1887, c. 373, 24 Stat. 552, and by Act Aug. 13, 1888, c. 866, 25 Stat. 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.

Act April 5, 1910, c. 143, 36 Stat. 291 (U. S. Comp. St. Supp. 1911, p. 1324), amending section 6 of the Employer's Liability Act (Act April 22, 1908, c. 149, 35 Stat. 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, of Ft. Smith, Ark., for plaintiff in error.

Winston T. Banks, of McAlester, for defendant in error.

WILLIAMS J.

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 20 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 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.

1. 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. 100, 18 S.Ct. 264, 42 L.Ed. 676, it was held that under Act Cong. March 3, 1887, c. 373, 24 Stat. 552, amending Act Cong. 1789, c. 20, 1 Stat. 73, known as the "Judiciary Act," as corrected by Act Aug. 13, 1888, c. 866, 25 Stat. 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. In Stevens et al. v. Ph nix Insurance 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, 124 P. 40; Western Coal & Mining Co. et al. v. Osborne, 30 Okl. 235, 119 P. 973; Bolen-Darnell Coal Co. v. Kirk, 25 Okl. 273, 106 P. 813, 26 L. R. A. (N. S.) 270; Choctaw O. & G. R. Co. v. Burgess, 21 Okl. 110, 95 P. 606. 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 Stat. 291 (U. S. Comp. St. Supp. 1911, p. 1324), passed to amend Employer's Liability Act April 22, 1908, c. 149, 35 Stat. 65 (U. S. Comp. St. Supp. 1909, p. 1173; U.S. Comp. St. Supp. 1911, p. 1322), deprived defendant of such right of removal.

2. This identical question is passed on in Newell v. Baltimore & O. R. Co. (C. C.) 181 F. 698, wherein it is said "In addition, the amendment of 1910 does not confer jurisdiction upon pending suits. The use of the words, 'may be brought,' clearly indicates that it refers to actions to be commenced after its passage. In addition, also, it is a general proposition of law that statutes will not be given a retroactive effect or apply to pending cases, unless they relate to procedure merely, or are so expressed in the act. As said by Mr. Justice Clifford in Twenty Per Cent. Cases, 20 Wall. 187, 22 L.Ed. 339: 'Even though the words of a statute are broad enough in their literal extent to comprehend existing cases, they must yet be construed as applicable only to cases that may hereafter arise, unless the language employed expresses a contrary intention in unequivocal terms.' I am of the opinion that the amendment of 1910 was not retroactive, and did not confer jurisdiction upon this court over the defendant. Had plaintiff elected to proceed without amendment of his statement or declaration, the benefits which he hoped to have by reason of the employer's liability act, which are unnecessary to be stated, might have been lost to him. He insisted upon the amendment, and as well asserts that the original statement sets forth a cause of action under the statute. The jurisdiction sought was not founded only upon diverse citizenship. * * *" 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 mandatory act (Acts 1859, p. 105), where the damages exceed $50, the party may bring his 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. 88): "The language of the amendment, so far as it indicates any legislative intent in respect to the question now under consideration, is as follows: 'That whenever any animal or animals shall be killed or injured by the cars or locomotives, or other carriages, used on any railroad in this state, the owner thereof may go before some justice of the peace,' etc. The language here employed seems to be clear and explicit. The amendment applies only to such animals as 'shall be' killed. 'Shall be' clearly indicates the future, and not the past. There is nothing in the amendment which indicates, so far as we can discover, an intent on the part of the Legislature to make it retrospective, and embrace animals previously killed. This court has in two instances at least indicated the rule of construction in this respect. Thus: 'It is a well-settled principle of law that the courts are to give statutes a prospective operation, where there is nothing indicating a different intention on the part of the Legislature which enacted the statutes.' Pritchard v. Spencer, 2 Ind. 486. Again: 'Statutes are to be considered prospective, unless the intention to give a retrospective operation is clearly expressed; and not even then, if, by such construction, the act would divest vested rights.' Aurora, etc., Turnpike Co. v. Holthouse, 7 Ind. 60." 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. 477; McEwen et al. v. Dem et al., 24 How. 242, 16 L.Ed. 672; Rolater v. Strain, 31 Okl. 58, 119 P. 992; Good et al. v. Keel et al., 29 Okl. 325, 116 P. 777. The cases of McHarry v. Eatman, 29 Okl. 46, 116 P. 935, and Harris v. Gale (C. C.) 188 F. 712, do not militate against the rule announced by the foregoing cases....