Hercules Powder Co. v. Nix

• Decision Date: 25 October 1926
• Docket Number: 25813
• Citation: 109 So. 862,144 Miss. 113
• Court: Mississippi Supreme Court
• Parties: HERCULES POWDER CO. et al. v. NIX. [*]

109 So. 862

144 Miss. 113

HERCULES POWDER CO. et al. v. NIX. ^[*]

No. 25813

Supreme Court of Mississippi

October 25, 1926

Division B

1. REMOVAL OF CAUSES.

Trial court, on petition for removal, under Federal Judicial Code section 29 (U. S. Comp. St., section 1011), cannot inquire into truth of petition, and, when petition and bond are sufficient on their face, must grant removal.

2 COURTS.

Where there is conflict of jurisdiction between state and Federal court, Federal question arises, in which United States supreme court is, court of last resort.

3. REMOVAL OF CAUSES.

Allegation in petition for removal, under Federal Judicial Code, section 29 (U. S. Comp. St., section 1011), that defendant was nonresident, held not a conclusion from facts, and petition need not set out evidence on which citizenship depended.

HON. R S. HALL, Judge.

APPEAL from circuit court of Forrest county, HON. R. S. HALL, Judge.

Action by Walter Nix against the Hercules Powder Company and another. Judgment for plaintiff, and defendants appeal. Reversed and remanded.

Case reversed and remanded.

Hannah & Simrall, T. J. Wills and H. Cassedy Holden, for appellants.

The defendants filed a petition and bond to remove the case to the Federal court, alleging that the Hercules Powder Company was a Delaware corporation and that Brown was a citizen of Illinois. The plaintiff filed an answer to this petition denying the citizenship of C. H. Brown and alleging that he was a citizen of Mississippi. The circuit court held that it had a right to inquire into this question of citizenship and proceeded to hear testimony on the question and adjudged that Brown was a citizen of Mississippi and that, therefore, the circuit court of Forrest county had jurisdiction of the case.

The action of the circuit court in holding that it had jurisdiction of this matter is the most grievous error complained of. That the circuit court was without jurisdiction to try this case is so plain and certain that we are reluctant to go into an elaborate discussion of the question.

The petition shows that the suit was for more than three thousand dollars, exclusive of interest and cost; that the plaintiff was a citizen of the state of Mississippi and that the defendants were residents of other states. If these facts were true, it was certainly a removable cause. Section 29, Judicial Code; Stone v. South Carolina, 117 U.S. 430, 29 L.Ed. 962, 6 S.Ct. 799, expressly held that: "All issues of fact made upon the petition for removal must be tried in the circuit court"--now the Federal district court. This same doctrine has been announced time and again by the United States supreme court. See Crehore v. Ohio & Miss. Ry. Co., 131 U.S. 240, 33 L.Ed. 144; Ill. Cent. R. R. Co. v. Shegog, 215 U.S. 308, 54 L.Ed. 208; C. R. I. & P. R. R. Co. v. Dowell, 229 U.S. 101, 57 L.Ed. 1090; Chesapeake & Ohio R. R. Co. v. Cockrell, 232 U.S. 146, 58 L.Ed. 544; Wilson v. Republic Iron & Steel Co., 257 U.S. 92, 66 L.Ed. 144.

The holding of the United States supreme court since the case of Stone v. South Carolina, has been clear, positive, unequivocal and consistent on the proposition that when a petition for removal is filed containing a statement of facts that shows a removable cause, the state court is without jurisdiction to proceed further, and that all issues of fact must be heard and determined by the district court. It necessarily follows that the circuit court of Forrest county was absolutely divested of jurisdiction to try and determine this cause, that the judgment rendered by said court is utterly void and, consequently, this case must be reversed and dismissed by this court for want of jurisdiction.

Anderson & Anderson and John R. Tally, for appellee.

The appellant filed in the court below a petition and bond to remove the case to the Federal court, alleging that the Hercules Powder Company was a Delaware corporation--that fact was charged in the declaration--and that C. H. Brown was a citizen of Illinois and not a resident of the state of Mississippi.

The appellee filed a reply to said affidavit and petition, under oath, setting up the fact that the said C. H. Brown was a resident of Forrest county, Mississippi, that he was a married man, a householder and freeholder in the city of Hattiesburg, Forrest county, and had been for a period of two years or more, that he married in said city and county, had a child born here, that he had not been out of the county for a period of two years, and that his attempt to claim that he was not a resident of Forrest county and his objection to being sued here was a palpable fraud, and that the filing of said affidavit was a deliberate attempt to perpetrate a fraud upon the circuit court of Forrest county.

The circuit judge then heard the evidence of the sheriff and C. H. Brown, appellant, as to whether he was residing in Forrest county or not; and this evidence disclosed such a palpable attempt to perpetrate a fraud on the jurisdiction of the circuit court of Forrest county that the court overruled the motion to remove.

Counsel for appellants did not object to a single question nor a single answer that was given in the testimony on this point; but on the contrary, cross-examined the witnesses and developed their side of the issue; and, we think, waived any rights that they might have had when they failed to object to the questions and answers.

We contend that it is the duty of every court to protect itself from deliberate fraud and not to permit any litigant to perpetrate a fraud upon the court in order to give jurisdiction of a matter to another court or to rob that court of jurisdiction.

Section 8, Constitution of Mississippi, provides: "All persons, resident in this state, citizens of the United States, are hereby declared citizens of the state of Mississippi."

The said C. H. Brown had been residing in Forrest county, Mississippi, for at least two years, with his wife and children, maintaining a home and was, therefore, at least a householder and resident, and he knew it, the court knew it and the attorneys knew it; and it would have been a palpable fraud upon the circuit judge to permit him to stick down an affidavit, as he did, and walk out of the courtroom and out of the jurisdiction of the court.

Stone v. State of South Carolina, 117 U.S. 430, 29 L.Ed. 962, plainly states: "The petition for removal should state facts which when taken in connection with such as already appear entitle him to the transfer. If he fails in this, he has not, in law, shown to the court that it cannot proceed further with the suit."

Simkins on Federal Practice, p. 1071, par. 2, states: "The rule is certain that on the filing of the petition and bond in the state court for removal, in a removable case, no further action can be taken by the state court, except to remove, as it is divested of jurisdiction over the case," and cites a number of authorities, but we call especial attention to the words in italics in said authority in a removable case. We submit that the whole record in this case shows that this case was not removable.

W. W. Crehore v. Ohio & Miss. Valley Ry., 131 U.S. 240, 33 L.Ed. 144, cited by counsel for appellants, clearly states at p. 145 of the opinion: "A state court is not bound to surrender its jurisdiction of the suit on a petition for removal until a case has been made which on its face shows that the petitioner has a right to the transfer; and that the mere filing of a petition for the removal of a suit, which is not removable, does not work a transfer."

We understand that the United States supreme court follows to some extent the same wholesome rule that this court has adopted in Rule 11; that is, that where the whole record shows there has not been a miscarriage of justice, that court will not reverse for a purely technical reason.

Hannah & Simrall, T. J. Wills and H. Cassedy Holden, in reply for appellants.

The real facts are that the appellants strenuously objected to the introduction of this testimony and the question was argued at length before the trial judge and a wealth of authorities cited. The record itself solemnly records that the court proceeded to hear this testimony over the objection of the appellants.

We join opposing counsel in fervently hoping and longing for the day when the courts can find a way to protect themselves against chicanery, fraud and perjury. But the fallacy in the argument of opposing counsel lies in the fact that they want to protect only the state court; seemingly they forget that the United States Government is equally zealous in protecting its tribunals from being defrauded of their jurisdiction.

If the appellant, C. H. Brown, was a citizen of the state of Illinois, the Federal court had jurisdiction of this case. We do not understand that opposing counsel would take issue with this statement. Then if appellee averred that Brown was a citizen of Mississippi, this would be perpetrating a fraud on the Federal court. The United States Government has been zealous to prevent this being done. But while it has been zealous in this respect, it has been more liberal with the appellee, plaintiff, than it has with the appellants, defendants. It has permitted the appellee to bring the defendants into the state court on an unsworn statement. When the defendants want to challenge this jurisdiction, they are required to do so by a sworn petition.

The counter-affidavit of the appellee did not allege that Brown was a householder and freeholder of Forrest county, and the testimony did not show this; but, on the contrary, showed the opposite.

Counsel quote from Simkins Federal Practice, p. 1071, on the right of the state court after a petition has been filed for removal in a removable...