Higgins v. Yellow Cab Co., 46 C 1363.
| Decision Date | 08 November 1946 |
| Docket Number | No. 46 C 1363.,46 C 1363. |
| Parties | HIGGINS v. YELLOW CAB CO. |
| Court | U.S. District Court — Northern District of Illinois |
Clarence M. Dunagan, of Chicago, Ill., for plaintiff.
Jesmer & Jesmer, of Chicago, Ill., for defendant.
This suit was removed to this court from the Superior Court of Cook County, Illinois. The plaintiff was a passenger in one of defendant's vehicles and was injured in a collision on the south side of Chicago between defendant's vehicle and another vehicle driven by one Frank Lenti. The plaintiff filed suit in the Superior Court of Cook County against both the defendant herein and Frank Lenti. The defendant herein is a corporation organized under the laws of the State of Maine; the said Frank Lenti is a resident and citizen of the State of Illinois. On July 3, 1946, after the defendant herein had filed its answer, the plaintiff had a default judgment entered in the Superior Court of Cook County against defendant Frank Lenti in the sum of $25,000. On July 8, 1946, the defendant herein filed its petition and bond, for removal of the cause to this court, in the Superior Court of Cook County, on the ground that, with the resident defendant in default, the controversy in suit is now wholly between citizens of different states and involves an amount in excess of $3,000. The Superior Court of Cook County denied the motion to remove. On July 30, 1946, the defendant herein filed in this court a transcript of the record in the Superior Court of Cook County in accordance with the removal statute 28 U.S.C.A. § 72; Metropolitan Casualty Insurance Co. v. Stevens, 1941, 312 U.S. 563, 61 S.Ct. 715, 85 L.Ed. 1044. On August 1, 1946, the defendant herein petitioned this court for an order enjoining plaintiff, his attorneys and agents from prosecuting this cause of action in the Superior Court of Cook County or in any other court than this court.
Although a removal petition must ordinarily be filed no later than the time when the defendant is required to answer or plead to the complaint in the state court, the defendant herein seeks to bring this case within the rule of Powers v. Chesapeake & Ohio Ry. Co., 1898, 169 U.S. 92, 18 S.Ct. 264, 42 L.Ed. 673, that a case may be removed to the federal courts at any time, even after the answer, when the voluntary act of the plaintiff, such as the voluntary dismissal of resident defendants, creates a basis for federal jurisdiction and hence, for the first time, makes removal possible. The defendant herein contends that when the plaintiff moved the Superior Court of Cook County to enter a default judgment against the said Frank Lenti, the resident defendant, he thereby voluntarily removed the resident defendant from the case, leaving it wholly between citizens of different states.
The court is of the opinion that the entry of a judgment against a defendant in default is not such a voluntary act of the plaintiff as to bring the case within the rule of the Powers case. First, default judgments arise by operation of law, although the plaintiff's attorney, as a formal matter, moves the court to enter judgment. But the court could enter a default judgment of its own...
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...& Ohio R. Co., 1898, 169 U.S. 92, 101, 18 S.Ct. 264, 42 L.Ed. 673; Stack v. Strang, 2 Cir., 1951, 191 F.2d 106, 107; Higgins v. Yellow Cab Co., D.C.Ill.1946, 68 F.Supp. 453; Morschauser v. American News Co., D.C.N.Y.1958, 158 F.Supp. 517, 519; Cobleigh v. Epping Brick Co., D.C.N.H.1949, 85 ......
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Russell v. Lamothermic Precision Casting Corp.
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