Halsey v. Minnesota-South Carolina Land & Timber Co.

• Decision Date: 07 January 1932
• Court: U.S. District Court — District of South Carolina
• Parties: HALSEY v. MINNESOTA-SOUTH CAROLINA LAND & TIMBER CO.

54 F.2d 933 (1932)

HALSEY v. MINNESOTA-SOUTH CAROLINA LAND & TIMBER CO.

District Court, E. D. South Carolina.

January 7, 1932.

H. L. Erckmann and Mitchell & Horlbeck, all of Charleston, S. C., for plaintiff.

Legare Walker, of Summerville, S. C., and Lide & McCandlish, of Marion, S. C., for defendant.

ERNEST F. COCHRAN, District Judge.

The plaintiff brought this action in the court of common pleas for Charleston county on January 14, 1929, against the Minnesota-South Carolina Land & Timber Company (hereinafter styled the Minnesota Company) and its agent, one R. L. Montague. The plaintiff and Montague are citizens of South Carolina, and the Minnesota Company is a citizen of Minnesota. The action is ex delicto for fraud and deceit, based on alleged false representations made by the Minnesota Company and Montague, its agent, in the sale of certain timber. The amount in dispute exceeds $3,000. There is no claim of a fraudulent joinder, and it is conceded that, at the time the action was instituted in the state court, it was not removable to this court. Both defendants answered, and the case was tried in the court of common pleas at the February term, 1930, before a jury, and a verdict was directed in favor of both defendants. An appeal to the Supreme Court of the state was duly taken, and, after the argument thereon, but before the decision of the Supreme Court was rendered, the defendant Montague, on the 20th of December, 1930, died. On October 6, 1931, the Supreme Court filed its decision, reversing the decision of the court of common pleas as to both defendants (Halsey v. Minnesota-South Carolina Land & Timber Co. et al. S. C. 160 S. E. 843), and ordered a new trial. On October 15, 1931, the defendant the Minnesota Company filed its petition in the Supreme Court for a rehearing; the rehearing was denied on November —, 1931; the remittitur from the Supreme Court to the court of common pleas was filed in the clerk's office of the latter court on November 9, 1931; and on the next day, namely, November 10, 1931, the Minnesota Company presented its petition to the state court for a removal of the cause to this court on the ground that the action, being ex delicto, did not survive as against the representatives of the defendant Montague, and had abated, and that the cause had become for the first time a controversy solely between the plaintiff, a citizen of South Carolina, and the defendant the Minnesota Company, a citizen of Minnesota, and was therefore now removable. The state court granted the petition and filed an order (without opinion) directing the record to be transmitted to this court. The plaintiff has made a motion in this court to remand the cause to the state court on the ground that the status of the case was not changed by any voluntary action of the plaintiff, and, not having been removable at the time instituted, it is not removable now.

The first question to be considered is whether the defendant's major premise, namely, that the cause of action did not survive against the representatives of the defendant Montague, and the action as to Montague is abated, is correct or not. Section 364 of the Code of Civil Procedure of South Carolina of 1922, vol. 1, provides that no action shall abate by the death, marriage, or other disability of a party or by the transfer of any interest therein, if the cause of action survive or continue; but the court may, on supplemental complaint, allow the action to be continued. Section 375 provides that causes of action for and in respect to any and all injuries and trespasses to and upon real estate, and any and all injuries to the person or to personal property, shall survive both to and against the personal or real representative, etc. This latter section, however, does not cover the present case, for the present action is not for injuries to real estate, to the person, or to personal property. The question of the survival of the action therefore depends upon the general common law as applied in South Carolina.

In South Carolina, the rule is, and has been from its earliest history, that actions ex delicto do not survive, unless the wrong which is the basis of the action has resulted in some gain or advantage to the wrongdoer, and this rule has been specifically applied to actions for fraud and deceit by false representations. Both sides have practically conceded this to be the law. McEachern v. Wilson, 154 S. C. 201, 151 S. E. 472, 477; Cline v. So. Ry. Co., 113 S. C. 440, 445, 446, 102 S. E. 641; Adams v. Haselden, 112 S. C. 32, 38, 99 S. E. 762; Jenkins v. Bennett, 40 S. C. 393, 394, 18 S. E. 929; Huff v. Watkins, 20 S. C. 477; Chaplin v. Barrett, 12 Rich. (S. C.) 284, 75 Am. Dec. 731; Code of S. C. 1922, vol. 1, §§ 364, 375.

No claim is made that any gain resulted to the defendant Montague from the wrong complained of. There can be no doubt, therefore, that the action as against Montague does not survive and was abated by his death.

The question, therefore, for consideration is this: When an action in which there is no claim of a fraudulent attempt to evade a removal is not removable at the time that it is instituted in a state court, but after its institution a party dies and the cause of action does not survive against his representatives, and the controversy then is for the first time solely between a citizen of one state and a citizen of another state, does the case then become removable?

It is conceded by both sides that there is no case directly in point upon this question; but there are numerous decisions by the Supreme Court of the United States laying down certain rules which in my judgment inevitably lead to the conclusion that the case does not become removable.

The time for filing a petition for removal is not essential to the jurisdiction; the provision on that subject is but modal and formal, and a failure to comply with it may be the subject of waiver or estoppel. Powers v. Chesapeake & Ohio Ry. Co., 169 U. S. 92, 98, 18 S. Ct. 264, 42 L. Ed. 673; Connell v. Smiley, 156 U. S. 335, 15 S. Ct. 353, 39 L. Ed. 443; Martin v. B. & O. R. Co., 151 U. S. 673, 688-691, 14 S. Ct. 533, 38 L. Ed. 311; Northern Pacific R. Co. v. Austin, 135 U. S. 315, 318, 10 S. Ct. 758, 34 L. Ed. 218; Ayers v. Watson, 113 U. S. 594, 597-599, 5 S. Ct. 641, 28 L. Ed. 1093.

It is well settled that a case not removable when commenced may become removable by the voluntary act or conduct of the plaintiff; either by amending his pleadings so as to change the nature of the cause of action, or by a voluntary dismissal of a party defendant, in a case not removable because of joinder of defendants. Great Northern Ry. Co. v. Alexander, 246 U. S. 276, 281, 38 S. Ct. 237, 62 L. Ed. 713; Powers v. Chesapeake & Ohio Ry. Co., 169 U. S. 92, 100, 101, 18 S. Ct. 264, 42 L. Ed. 673; Fritzlen v. Boatmen's Bank, 212 U. S. 364, 29 S. Ct. 366, 53 L. Ed. 551; Martin v. Baltimore & Ohio R. R. Co., 151 U. S. 673, 688, 691, 14 S. Ct. 533, 38 L. Ed. 311; Ayers v. Watson, 113 U. S. 594, 5 S. Ct. 641, 28 L. Ed. 1093.

But it is equally well settled that, where there is no claim of a fraudulent attempt to evade a removal, a case not removable when commenced cannot be converted into a removable one by evidence of the defendant or by an order of the court upon an issue on the merits; but can only be accomplished by the voluntary action of the plaintiff. Great Northern Ry. Co. v. Alexander, 246 U. S. 276, 281, 38 S. Ct. 237, 62 L. Ed. 713; Southern Ry. Co. v. Lloyd, 239 U. S. 496, 500, 36 S. Ct. 210, 60 L. Ed. 402; American Car & Foundry Co. v. Kittelhake, 236 U. S. 311, 315, 316, 35 S. Ct. 355, 59 L. Ed. 594; Whitcomb v. Smithson, 175 U. S. 635, 637, 20 S. Ct. 248, 44 L. Ed. 303; Kansas City Suburban, etc. v. Herman, 187 U. S. 63, 70, 23 S. Ct. 24, 47 L. Ed. 76; Lathrop, Shea & Henwood Co. v. Interior Constr'n Co., 215 U. S. 246, 251, 30 S. Ct. 76, 54 L. Ed. 177; Alabama Great Southern R. Co. v. Thompson, 200 U. S. 206, 26 S. Ct. 161, 50 L. Ed. 441, 4 Ann. Cas. 1147.

The reason for these rules is perfectly clear. If a plaintiff could voluntarily change the nature of his cause of action or...