Gassman v. Jarvis

• Decision Date: 08 March 1899
• Docket Number: 9,807.
• Citation: 100 F. 146
• Parties: GASSMAN v. JARVIS.
• Court: United States Circuit Court, District of Indiana

100 F. 146

GASSMAN v. JARVIS.

No. 9,807.

United States Circuit Court, D. Indiana.

March 8, 1899

George H. Hester and Miller, Elam & Fesler, for plaintiff.

Wm. L Taylor, for defendant.

BAKER District Judge.

This is an action for the recovery of damages for a personal injury brought in the court below, and removed by the defendant into this court. The defendant now moves the court to dismiss the action for the reason that the state court whence it has been removed had no jurisdiction of the cause of action, and therefore that this court by its removal has acquired none. The want of jurisdiction in the court below is claimed to arise out of these facts: The plaintiff on April 18, 1898 filed his complaint in the state court against the defendant as receiver, for the same identical cause of action which is set out in the present complaint. That cause was duly removed into this court, and was put at issue and tried, and a verdict returned for the defendant, which verdict was set aside and a new trial granted; and thereupon the plaintiff dismissed his cause of action, and thereafter brought the present suit in the same state court for the same identical injury and cause of action as that set forth in the suit which had been so removed and dismissed. The contention of the defendant is that the jurisdiction of this court upon removal is exclusive and continuous, and that, though the cause so removed is dismissed without any trial or determination of the merits, no suit can thereafter be instituted and maintained for the same cause of action in the court from which the removal has been taken. This contention finds support in the case of Cox v. Railroad Co., 68 Ga. 446, and the case of Railroad Co. v. Fulton, 59 Ohio St. 575, 53 N.E. 265. The supreme court of Georgia decides that, where a case has been removed from a state court into the circuit court of the United States, the jurisdiction of the former ceases, and after a nonsuit in the federal court the case cannot be renewed in the state court, although a statute of that state expressly provides that if the plaintiff shall be nonsuited he shall have the right to recommence his suit within six months, and that such renewed suit shall stand upon the same footing as to limitation with the original case. The court states the question for decision thus:

'Can a case which has been removed to the United States court be renewed in the state court?' That court holds that it cannot, and the only reason assigned is found in the following extract:

'We think not, because the act of removal ipso facto transfers the jurisdiction of the cause to the circuit court of the United States, and devests that of the state court, so that by the ruling of the supreme court of the United States in the case of Kern v. Huidekoper, 103 U.S. 485, 26 L.Ed. 354, at the October term, 1880, all further proceedings in the state court are coram non judice and void.'

The case of Kern v. Huidekoper, supra, does not lend any support to the decision of the supreme court of Georgia. In that case a proper petition and bond for removal had been seasonably filed and presented to the state court, which refused to order the removal of the cause, and insisted upon retaining jurisdiction. Thereupon the parties asking the removal filed a transcript of the proceedings of the state court in the proper circuit court of the United States, and procured an order of the latter court docketing the case as one properly removed to and pending in that court. Notwithstanding the removal and pendency of the cause in the circuit court of the United States, the state court proceeded to try the case and render judgment against the parties who had asked for the removal. Afterwards the cause was tried in the circuit court of the United States, where the parties who had removed the cause secured judgment in their favor. This latter judgment was removed to the supreme court by writ of error, and was there affirmed. The court held that if a cause is removable and the statute for its removal has been complied with, no order of the state court for its removal is necessary, to confer jurisdiction on the court of the United States, and no refusal...