Goins v. Southern Pac. Co.

• Decision Date: 29 July 1912
• Docket Number: 15,546.
• Citation: 198 F. 432
• Parties: GOINS v. SOUTHERN PAC. CO.
• Court: U.S. Court of Appeals — Ninth Circuit

198 F. 432

GOINS v. SOUTHERN PAC. CO.

No. 15,546.

United States District Court, N.D. California.

July 29, 1912

William J. Herrin, of San Francisco, Cal., for plaintiff.

George F. Buck, of Stockton, Cal., and A. A. Moore and Stanley Moore, both of San Francisco, Cal., for defendant.

VAN FLEET, District Judge.

This action was commenced in the state court since the taking effect of the Judicial Code (Act March 3, 1911, c. 231, 36 Stat. 1087 (U.S. Comp. St. Supp. 1911, p. 128)), and in due time the defendant took certain steps to remove the cause here. It filed its petition, the formal sufficiency of which is not questioned, disclosing a controversy between citizens of different states, and that the amount involved is such as to give this court jurisdiction and it accompanied its petition with a proper bond, and duly procured from the state court a formal order of removal. But the defendant wholly failed, for what reason does not appear to give notice to the adverse party of its purpose to take these proceedings to remove, as required by the Code (section 29), and, basing his motion solely on that ground, the plaintiff now asks that the cause be remanded, upon the theory that the omission of notice is fatal to the sufficiency of the proceeding.

As presented in the briefs, the question is made to depend upon whether the requirement of notice is fundamental and jurisdictional, as contended by the plaintiff, or is merely modal and formal and its omission but an irregularity, which will not defeat jurisdiction, as urged by defendant. I regard it as involving an inquiry somewhat broader than that. The requirement of notice of removal proceedings is new to the Code, not having found a place in any previous legislation upon the subject; and owing, perhaps, to the brief period elapsing since that act took effect, no question involving this feature has, so far as appears, before arisen. Its effect must therefore be determined largely, if not wholly from a consideration of the purpose intended to be subserved thereby, and those considerations, in view of the history of the previous legislation and its construction by the courts give rise to the uncertainty involved. In all respects other than the requirement of notice, section 29 is, in substantive effect, but a rescript of the provisions on the mode of removal as they existed at the time the Code took effect; the other changes being formal and in matters of detail. It provides, precisely as did the act of 1887 (Act March 3 1887, c. 373, 24 Stat. 552 (U.S. Comp. St. 1901, p. 508)), for the filing in the state court within a given time of a petition for removal, to be accompanied by a bond, the conditions of which are the same in all respects as there required. This is followed by the provision as found in that act, that:

'It shall then be the duty of the state court to accept said petition and bond and proceed no further in said suit.'

Then comes the provision in question, in these words:

'Written notice of said petition and bond for removal shall be given the adverse party or parties, prior to filing the same.'

The remaining features of the section, relating to proceedings in this court, are in substance as found in the previous act.

The questions arising upon the provisions of the statute as they existed before supplanted by the Code had been mostly settled by judicial construction. Under those provisions, in the absence of any requirement of notice, the proceeding was treated as purely ex parte, and the functions of the state court were regarded as largely formal and perfunctory. Upon the filing of a petition showing a case for removal accompanied by a proper bond, it was the duty of the state court upon application to make a formal order for removal and proceed no further; but, if it failed or refused to do so, the cause nevertheless stood removed, and the moving party could proceed to file a copy of the record in the federal court. Wabash Western Ry. v. Brow, 164 U.S. 271, 17 Sup.Ct. 126, 41 L.Ed. 431. No issues of fact upon the averments of the petition could be raised or tried in the state court, but all such questions were to be heard and disposed of in the federal court to which the cause was removed. And while the state court was not bound to surrender its jurisdiction upon a record which on its face did not in its judgment disclose a case for removal, its refusal was at the peril of having its judgment set aside by the Supreme Court of the United States, should its ruling prove erroneous. Stone v. South Carolina, 117 U.S. 430, 6 Sup.Ct. 799, 29 L.Ed. 962, and cases there cited. In other words, it may be stated broadly that, under the procedure obtaining before the Code, ipso facto, upon the filing of the requisite petition and bond, the state court was ousted of jurisdiction in the premises; and all questions as to defects or irregularities appearing in the proceedings were to be passed upon and determined by the federal court. Black's Dillon on Removal of Causes, Secs. 191, 192. Of course, if an order of removal was procured in a case not subject thereto, or where the proceedings were so defective in substance as not to admit of the retention of the cause, then it was the duty of the federal court to remand it, upon the theory that the latter had not acquired jurisdiction by the...