Hodge v. Chicago & A. Ry. Co.

• Decision Date: 02 March 1903
• Docket Number: 1,765.
• Citation: 121 F. 48
• Parties: HODGE v. CHICAGO & A. RY. CO.
• Court: U.S. Court of Appeals — Eighth Circuit

121 F. 48

HODGE v. CHICAGO & A. RY. CO.

No. 1,765.

United States Court of Appeals, Eighth Circuit.

March 2, 1903

R. D Rodgers and P. H. Cullen (J. S. McIntyre, on the brief), for plaintiff in error.

F Houston, for defendant in error.

Before CALDWELL, SANBORN, and THAYER, Circuit Judges.

THAYER Circuit Judge.

This is an action for personal injuries, which was brought by J. R Hodge, the plaintiff in error, against the Chicago & Alton Railway Company, defendant in error, in the circuit court for Audrain county, in the state of Missouri, on March 29, 1901. The action was returnable to the June term of that court, which convened, pursuant to law, on the first Monday of that month. At the return term, and on June 3, 1901, the defendant company appeared by its counsel and filed a petition and bond for the removal of the cause to the federal Circuit Court; alleging in its petition for a removal that the plaintiff was a citizen and resident of the state of Missouri; that the defendant company was duly incorporated under the laws of the state of Illinois; that the amount in controversy exceeded $2,000, exclusive of interest and costs; and that the time allowed by law to the defendant company to plead to the complaint would not expire until the succeeding day, to wit, June 4, 1901.

Originally Audrain county, Mo., formed a part of the Eastern Judicial District of Missouri, and was in the Northern Division of that district. Act Feb. 28, 1887, 24 Stat. 424, c. 271 (U.S. Comp. St. 1901, p. 385). By a later enactment, approved October 1, 1888, Audrain county was detached from the Northern Division of the Eastern Judicial District of Missouri, and attached to the Central Division of the Western Judicial District of Missouri, whose courts are held at Jefferson City, Mo. Act Oct 1, 1888, 25 Stat. 498, c. 1056 (U.S. Comp. St. 1901, p. 388). By a still later act, approved on January 28, 1897 (29 Stat. 502, c. 106 (U.S. Comp. St. 1901, p. 389)), the county was restored to the Eastern Judicial District of Missouri, but was assigned to the Eastern Division of that district, whose courts are held at St. Louis, Mo.; the courts of the Northern Division, to which it was originally attached, being held at Hannibal, Mo.

When the defendant company applied for the removal of the cause, through inadvertence it prayed that the action might be removed to 'the Circuit Court of The united States for the Southern Division of the Eastern District of Missouri, at St. Louis, Missouri. ' On the other hand, the bond, which it tendered was conditioned that the defendant company should file the transcript 'in the Circuit Court of the United States in and for the Central Division of the Western District of Missouri on the first day of its next session. ' Discovering the error in the petition and in the bond for removal, the defendant company applied to the state court on June 7, 1901, for leave to amend its petition and bond so as to describe the removal court correctly as the Circuit Court of the United States for the Eastern Division of the Eastern Judicial District of Missouri, and for leave to file a new bond, obligating it to lodge the transcript in the last-named court on the first day of its next session. This application to amend the petition and for leave to file a new bond was denied by the state court on the next day, to wit, June 8, 1901. Thereupon, on June 24, 1901, having first obtained leave so to do, the defendant company lodged a complete transcript of the cause, showing all the proceedings aforesaid, in the Circuit Court of the United States for the Eastern Division of the Eastern Judicial District of Missouri. On the same day it filed in that court a bond for the requisite amount, containing a proper condition obligating the defendant company to lodge the transcript in that court, and to pay all costs that might be awarded if it should be held that the cause was wrongfully or improperly removed thereto. On July 8, 1901, the plaintiff filed a motion in the federal Circuit Court to remand the cause to the state court, which motion, having been heard and considered, was overruled on October 21, 1901. The case was subsequently tried to a jury, resulting in a verdict and judgment in favor of the defendant company, whereupon the plaintiff below removed the cause to this court by a writ of error.

The principal question to be determined by this court is whether the federal Circuit Court, in view of the facts aforesaid, acquired jurisdiction of the case, or should have remanded it to the state court, as it was requested to do. It will be observed that the original petition for a removal clearly showed that the case was one of federal cognizance, because of diversity of citizenship and the amount in controversy, and that the only defect in the petition was in the prayer, which erroneously described the court to which a removal was desired as sitting in the Southern Division of the district, instead of the Eastern Division. But as there was no such division of the district as the Southern, and as the place where the court was held, to wit, the cit- of St. Louis, was correctly described, the error in question was one of those obvious errors, such as a court can correct, at pleasure, or disregard. The intent to remove the case to the Eastern Division of the Eastern District was plain, and the court was privileged to construe the prayer a-cording to the manifest intention of the petitioner, disregarding the obvious mistake made in describing the division.

The bond, however, was defective, in that it obligated the petitioner to lodge the transcript in the Circuit Court of the United States for the Central Division of the Western District of Missouri-- a court which could not acquire jurisdiction of the case by removal under any circumstances. But it was equally manifest that this mistake in the bond was occasioned by the fact that Audrain county had been shuffled about from one division and district to another until some persons had lost track of it, and did not know where it belonged. It was also manifest that the petitioner intended to obligate itself to lodge the transcript in that court where, under the law, it ought to be lodged. The petitioner subsequently executed, and, by permission of the Circuit Court of the United States for the Eastern District of Missouri, filed, a proper bond, and the only question which need be considered is whether the original defective bond could be thus amended after the time...