Henen, Adm'r v. Baltimore & O. R. Co.
| Decision Date | 07 May 1881 |
| Citation | 17 W.Va. 881 |
| Parties | HENEN, ADM'R v. The Baltimore & O. R. R. CO. |
| Court | West Virginia Supreme Court |
1. An order of a State court removing a case at law to the circuit court of the United States under section 639, page 114 of the Revised Statutes of the United States 2d ed. is reviewable by the Supreme Court of Appeals of this State by writ of error and upon such review said Supreme Court of Appeals may reverse or affirm such order, as justice and the law may require in the opinion of such Court.
2. Where a petition is filed in a State court praying the removal of a case from such court to a circuit court of the United States under said section 639 of the said Revised Statutes, the State court ought not to receive the bond offered by the petitioner, unless the condition of the bond so offered contains the material parts prescribed and required by said section in such a case.
3. A railroad corporation may have an existence in more than one State, if chartered or licensed to build its road in more than one State.
4. The Baltimore and Ohio Railroad Company is a domestic corporation of this State and liable to be sued here; and the court will take judicial cognizance of that fact. Hart v. The Baltimore and Ohio Railroad Co., 6 W.Va. 336.
5. When such company is sued in the courts of this State by a citizen thereof, such suit cannot be removed into the circuit court of the United States for the district of West Virginia, in such case said 639th section of said Revised Statutes does not apply to or embrace the said Company.
Writ of error to an order of the circuit court of the county of Wetzel made on the 18th day of October, 1879, in an action in said court then pending, wherein John Henen, administrator was plaintiff and the Baltimore and Ohio Railroad Company was defendant, allowed upon the petition of said Henen.
Hon. A B. Fleming, judge of the second judicial circuit, made the order complained of.
HAYMOND JUDGE, furnishes the following statement of the case:
This is an action of trespass on the case brought by the plaintiff John Henen, administrator of Jane Smith, deceased, against the defendant for the killing of plaintiff's intestate by the defendant's servants driving a steam engine over her at a public crossing on its railroad, in an unlawful, careless and negligent manner on the 10th day of February, 1879. The suit was brought in the circuit court of Wetzel county, State of West Virginia, on the 28th day of July, 1879. The declaration contains two counts. The damages claimed in the declaration are $5,000.00.
It appears, that on the 18th day of October, 1879, the defendant, by its counsel, appeared in said circuit court and filed its petition to the said circuit court, which is as follows:
" To the Honorable A. Brooks Fleming, Judge of the Circuit Court of Wetzel County, in the State of West Virginia:
The petition of the Baltimore and Ohio Railroad Company respectfully represents, that your petitioner was incorporated and made a body politic by an act of the General Assembly of the State of Maryland, by an act entitled ‘ An act to incorporate the Baltimore and Ohio Railroad Company’ passed on the 28th day of February, 1827; that the purpose of said act was, as sufficiently indicated by its title, to secure the construction and working of a railroad from the City of Baltimore, in the State of Maryland, westward through said State, the (then) State of Virginia, and perhaps in part through the State of Pennsylvania to some point on the Ohio river; that said charter was duly accepted by the shareholders of said company and said company regularly organized under the said charter, and the said road has been since constructed and is now worked and operated from Baltimore, through the State of Maryland, and through the (then) State of Virginia, now the State of West Virginia, to the City of Wheeling in the county of Ohio, in the said last named State; that a suit has been recently instituted against your petitioner as such corporation as aforesaid, in the circuit court of Wetzel county, in the said State of West Virginia, by one John Henen, administrator of Jane Smith, deceased, being an action of trespass on the case, for the purpose of recovering against your petitioner damages claimed to amount to and laid at the sum of $5,000.00 for injuries of a personal nature to and the alleged killing of the said Jane Smith, deceased, for which the plaintiff claims, that your petitioner is responsible; that said suit is now pending and undetermined in your Honor's said court, and the matter in dispute exceeds the sum of $500.00; that your petitioner has not heretofore entered an appearance in said cause, and desires to remove the same for trial from your Honor's said court into the next circuit court of the United States to be held in the district of West Virginia, of which district the said Jane Smith, at the time of her death was, and the said plaintiff, at the time of bringing said suit was, and still is, a citizen and resident. And to that end your petitioner now here offers to give good and sufficient security for entering in such circuit court of the United States on the 1st day of its next session copies of said process against it, and for its then appearing and doing all and everything required by law in the premises, and prays, that said cause may be so removed from the said circuit court of Wetzel county, West Virginia, into the next circuit court of the United States for the said district of West Virginia, to be therein heard, tried and determined, and that your Honor's said State court will proceed no further in said cause, and as in duty bound your petitioner will ever pray, & c.
BALTIMORE AND OHIO RAILROAD CO.,
By its Attorneys.
Boggess and McCoy, Attorneys. "
Upon the filing of said petition the circuit court made and entered an order in the cause as follows:
" JOHN HENEN, administrator of Jane Smith, deceased, plaintiff, v. THE BALTIMORE AND OHIO RAILROAD COMPANY, defendant.--In case.
This day came the plaintiff, by his attorney, and thereupon came also the defendant, by its attorney, and filed here in court its petition praying that this cause may be removed by order of this court into the next circuit court of the United States to be held for the District of West Virginia, to be therein tried and determined, and that this court will proceed no further therein. To the filing of which petition the plaintiff, by his counsel, objected, which objection, on consideration by the court, is overruled, and the said petition was received by the court and ordered to be filed. And thereupon the said plaintiff filed here in court an answer in writing to said petition of the defendant. To the filing of which answer, the defendant, by its counsel, objects and excepts to the same as improper and insufficient. Whereupon, on consideration, the court overrules the defendant's said objection, and allows the said answer to be filed; and the matter of the defendant's said petition having been fully considered by the court, together with the evidence and argument of counsel, therefore it seemed to the court here that said defendant is entitled, under the law, to have the prayer of the said petition, and said cause removed, as prayed for. Thereupon it is ordered, that upon the defendant, or some one for it, executing and filing bond in the penalty of $500.00, with condition to enter in the next circuit court of the United States for the District of West Virginia, on the first day of its next session, copies of the process in said cause, and for its then and there appearing and doing what ever else may be required by law in the premises, this cause shall be removed into the said circuit court of the United States. And the said defendant thereupon tendered here in court a bond in such penalty, executed by J. W. Bradshaw, P. McDonnel and J. W. McCoy, with conditions as above required, which is received by the court and ordered to be filed; and it is accordingly considered by the court that this court proceed no further in said cause, and that the same be removed into the said circuit court of the United States to be therein heard, tried and determined.
The answer to said petition filed by the plaintiff and mentioned in said order is as follows:
To the petition of defendant to remove this cause to the circuit court of the United States, the plaintiff replies and answers as follows: That the defendant does not operate or own its railroad in the State of West Virginia by virtue of any Maryland law, but has its existence in this State, and is a corporation and has constructed its road within this State, and operates it all by virtue of sundry acts of the Legislatures of Virginia and West Virginia, and the defendant is under these laws a corporation of this State, and was so created within this State by virtue of said laws. Plaintiff denies that defendant is a Maryland corporation within the act of Congress under which they seek to remove this cause.
Plaintiff further says, that for the purpose of this suit the defendant is a resident of this State, and, therefore, prays that the petition of defendant be rejected.
JOHN HENEN, Adm'r.
By J. D. Ewing, Atty. "
The bond filed by defendant, and mentioned in the said order is as follows:
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