Henderson v. Cabell

• Decision Date: 01 March 1892
• Citation: 19 S.W. 287
• Parties: HENDERSON v. CABELL <I>et al.</I>
• Court: Texas Supreme Court

19 S.W. 287

HENDERSON v. CABELL et al.

Supreme Court of Texas.

March 1, 1892.

Commissioners' decision. Section A. Appeal from district court, Dallas county; T. J. FREEMAN, Special Judge.

Action by Thomas Henderson against W. L. Cabell and others. Judgment for defendants. Plaintiff appeals. Reversed.

The other facts fully appear in the following statement by MARR, J.:

On May 3, 1877, the appellant, Thomas Henderson, brought an action in the United States circuit court for the northern district of Texas at Dallas against appellees, W. L. Cabell and others, to recover damages in the sum of $4,500 against said Cabell and the sureties on his official bond as United States marshal for the northern district of Texas, for an unlawful levy upon a certain stock of goods, wares, and merchandise, made by said Cabell acting in his official character as such United States marshal, by virtue of a writ of attachment then in his hands, against S. C. Carroll, and as the property of S. C. Carroll. The petition alleged that appellant owned an undivided one half interest in said stock of goods, and was in possession of same, and that said Cabell as such United States marshal took them from the possession of appellant, and converted them to his own use, etc., to appellant's damage as above set forth, in the sum of $4,500. The appellees, said Cabell et al., appeared in said United States court, and on June 2, 1888, filed therein a plea to the jurisdiction, in which they set out that plaintiff had wrongfully alleged the value of his goods taken and damage suffered at an amount exceeding $2,000, for the purpose of conferring jurisdiction upon the court, whereas in fact the value of his goods taken and the damage suffered did not exceed $2,000; and praying that the suit be dismissed for want of jurisdiction. Said plea to the jurisdiction was upon its merits submitted to a jury, who returned a verdict thereon in favor of appellees, said Cabell et al., and judgment was accordingly entered, said United States court dismissing said cause from said court for want of jurisdiction, which judgment still stands in said court, final, in no wise reversed or set aside. 43 Fed. Rep. 257. On July 26, 1888, appellant, Thomas Henderson, filed in the district court of Dallas county this suit against appellees, W. L. Cabell et al., being upon the same cause of action sued upon in the United States court, the parties and the cause of action in both cases being identical, and alleging his damages at $2,000; and on September 30, 1889, he amended his petition, in no wise changing the parties or cause of action, but alleging damages at $3,500. On October 1, 1889, the defendants below, except one S. C. Carroll, filed in the district court of Dallas county a petition for removal of the cause to the United States circuit court, and at the same time filed a bond for removal; S. C. Carroll, one of the defendants, not joining in either the petition or bond for removal, and the bond not being payable to him. On October 1, 1889, the plaintiff below filed an answer to the petition for removal, setting up, among other things, the facts stated above about the case having been originally brought in the United States court, and having been a plea to the jurisdiction filed by the defendants, thence dismissed for want of jurisdiction, and alleging that it was res judicata; that the United States court did not have jurisdiction to hear and determine the cause; that it was not a removable cause; that the defendants were estopped to remove it. The facts stated in said answer were admitted to be true. The court, on October 1, 1889, ordered the removal, to which plaintiff reserved his bill of exceptions. On October 11, 1889, the plaintiff filed a motion to set aside the order of removal, which motion was on October 22, 1889, allowed, and the cause reinstated on the docket for trial on its merits. No further action was taken in the cause during that term of the court. At the next term, on January 23, 1890, when the cause was regularly called for trial, the defendants, except S. C. Carroll, filed a motion to strike the cause from the docket, on the ground that it had, by the removal proceedings had at the last term of the court, been removed to the United States court. This motion was refused by the Honorable R. E. BURKE, the regular judge of the district, who was then hearing the cause, and both parties answered ready for trial. After this, and while the jury was being impaneled, the Honorable R. E. BURKE became sick and unable to proceed with the, case, and it was agreed that the Honorable T. J. FREEMAN should try the case. After the Honorable T. J. FREEMAN took the bench, the motion to strike the cause from the docket was renewed, and overruled by the Honorable T. J. FREEMAN. The case proceeded to trial, resulting in a judgment for the plaintiff for $1,225.68. On January 27, 1890, the defendants, except S. C. Carroll, filed a motion for a new trial, alleging, among other things, that the court erred in overruling their motion to strike the case from the docket on February 21, 1890. The Honorable T. J. FREEMAN sustained the motion for a new trial on the ground that there was error in not striking the case from the docket as prayed for, and set the judgment previously rendered for plaintiff aside, and dismissed the cause for want of jurisdiction, to which plaintiff in open court excepted, and gave notice of appeal to the supreme court. On February 22, 1890, plaintiff filed a motion to set aside the order dismissing the cause for want of jurisdiction, and award him execution, which motion was overruled on February 22, 1890, to which plaintiff in open court excepted, and gave notice of appeal to the supreme court of the state. The next term of the United States court after filing of the petition and bond for removal met at Graham on October 21, 1889. The defendants, on said October 21, 1889, obtained from the clerk of the district court of Dallas county a record of the proceedings had in that court, and procured the deputy clerk for the United States court at Dallas to indorse it as filed on that day, and it was then forwarded by mail from Dallas to Graham, and was deposited in the office of the United States clerk at Graham on October 24, 1889, and was on next day, on motion of the defendants removing it, dismissed for want of prosecution, and the court adjourned on the same day, — October 25, 1889. The plaintiff used diligence in prosecuting his cause, and inquired and ascertained that the record was not filed at Graham on the first day of the term, and he did not know of the filing and dismissal as above set forth until after the adjournment of the term. Plaintiff below here filed his appeal bond on March 15, 1890, and assignment of errors on the same day, and he now brings the case to this court for review.

Cobb & Avery, for appellant.

MARR, J., (after stating the facts.)

The appellant presents the following introductory proposition, viz.: "On application for removal of a cause from a state court to the United States court it is the right and duty of the state court to inquire into and determine for itself whether the cause is removable, and whether the petition and bond are sufficient for removal; and especially is this true when such determination involves the trial of no issue of fact, but is a decision upon the law alone." There was no issue of fact disputed and to be tried upon the application for removal. The facts set up by plaintiff in his answer to defendants' application for removal were in open court, by all the parties, admitted to be true. After the petitioners for removal filed the transcript in the United States circuit court, they had it dismissed for want of prosecution, under the circumstances set forth in plaintiff's bill of exceptions No. 2, and the question of the removability of the cause and sufficiency of the petition and bond for removal have never been passed on by that court. The foregoing proposition is supported by counsel with the following authorities: Railway Co. v. Harrison, 73 Tex. 103, 11 S. W. Rep. 168; Railway Co. v. McAllister, 59 Tex. 349; Harrold v. Arrington, 64 Tex. 233; Bank v. Adams, 130 Mass. 431; Burch v. Railroad Co., 46 Iowa, 449; McWhinney v. Brinker, 64 Ind. 360; Angier v. Railroad Co., 74 Ga. 634; Carswell v. Schley, 59 Ga. 17; Blair v. Manufacturing Co., 7 Neb. 146; State v. Johnson, 29 La. Ann. 399. It is insisted by appropriate assignments of error upon the part of the appellant that the court below erred in sustaining the defendants' motion for a new trial, and in dismissing the plaintiff's suit for want of jurisdiction, upon the ground that the cause had been duly removed to the United States circuit court, and that the jurisdiction of the latter court over the law had attached from the time of the filing the petition and bond of the before-named defendants for a removal of the cause to said court. It is claimed that the right of removal to the federal court was not shown by the defendants, and in fact did not exist in the present controversy under the laws of congress for the following, among other, reasons, viz.: (1) Because the judgment of the circuit court for the northern district of Texas, rendered in the original suit between the same parties and upon the identical cause of action as in the present action, and which was procured by the defendants, and denied the jurisdiction of that court over the controversy, is res judicata, final, and conclusive of the question; (2) because all of the defendants did not unite in the petition or join in the bond for the removal to the circuit court, as must be done where the sole ground for removing the cause or conferring jurisdiction upon the federal court is that the controversy "arises under the laws of the United States."

As we have already stated, one of the defendants, S. C. Carroll, was not a party to the application for the removal, nor is the bond made...