Hoyt v. Sears, Roebuck & Co.
| Decision Date | 12 September 1942 |
| Docket Number | No. 10058.,10058. |
| Citation | 130 F.2d 636 |
| Parties | HOYT et al. v. SEARS, ROEBUCK & CO. |
| Court | U.S. Court of Appeals — Ninth Circuit |
Kenneth J. Murphy, of Los Angeles, Cal., for appellants.
Parker & Stanbury, Harry D. Parker, Raymond G. Stanbury, and Vernon W. Hunt, all of Los Angeles, Cal., for appellee.
Before WILBUR, MATHEWS, and STEPHENS, Circuit Judges.
The plaintiff, Sears Roebuck and Co., a New York corporation, commenced an action in the California State court, seeking to recover from the defendants, both California residents, the sum of $6,150 which the plaintiff had been compelled to pay to the widow and minor child of a former employee of the plaintiff, by reason of a death benefit award made by the Industrial Accident Commission of the State of California. The complaint alleged that the employee's death was caused by the negligence of the defendant Lillian M. Hoyt in the operation of an automobile owned by the defendant Ezra S. Hoyt, Jr.
The defendants filed an answer and a cross-complaint in the State court action, alleging that the accident was caused by the negligence of the plaintiff's employee and praying damages.
Thereafter the plaintiff filed a petition for removal of the cause to the United States District Court, and a bond for removal. The State court thereupon made an order removing the cause. No motion for remand was made by the defendants. Trial was had in the United States District Court, and judgment was rendered in favor of the plaintiff-appellee. The present appeal followed.
As one of their points on appeal, appellants question the jurisdiction of the District Court. They rely on Shamrock Oil and Gas Corporation v. Sheets, 313 U.S. 100, 61 S.Ct. 868, 85 L.Ed. 1214, in which the Supreme Court held that the filing by the defendant in a suit in a State court of a counterclaim setting up an independent cause of action does not confer upon the plaintiff the right of removal. Appellee, however, urges that the cited case is inapplicable for the reason that in the instant case no objection to the removal or motion to remand the cause was made by the defendants. The argument is that the error in the removal proceedings was not jurisdictional and was waived by the defendants by their acquiescence in the removal.
But we are of the opinion and therefore hold that the Shamrock case, supra, is controlling and compels a reversal of the cause. While it is true that the question of whether or not there could be a waiver of the irregularity in removal was not directly before the Supreme Court, the Court's language clearly indicates that it considered the regularity of the proceedings in this respect as going to the jurisdiction of the District Court.
We quote at pages 105, 106 of 313 U. S., at page 871 of 61 S.Ct., 85 L.Ed. 1214: ...
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Trullinger v. Rosenblum
...Merz v. Dickson, D.C., 95 F.Supp. 193; Old Reading Brewery v. Lebanon Valley Brewing Company, D.C., 102 F.Supp. 434; Hoyt v. Sears, Roebuck & Co., 9 Cir., 130 F.2d 636. In order to determine whether or not the defendants in this case have a right to remove it to the federal court, we must f......
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Kaneshiro v. North Am. Co. For Life & Health, Civ. No. 79-0480.
...(citing Shamrock Oil & Gas Corp. v. Sheets, 313 U.S. 100, 108-09, 61 S.Ct. 868, 872, 85 L.Ed. 1214 (1941), and Hoyt v. Sears, Roebuck & Co., 130 F.2d 636, 637 (9th Cir. 1942), cert. denied, 317 U.S. 687, 63 S.Ct. 257, 87 L.Ed. 550 (1942)). This follows the fact that `. . . a federal court i......
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Bradley v. Maryland Casualty Company
...are to be strictly construed, Shamrock Oil & Gas Corp. v. Sheets, supra, pp. 108-109 of 313 U.S., 61 S.Ct. 868; Hoyt v. Sears, Roebuck & Co., 130 F.2d 636, 637 (9 Cir. 1942). These pronouncements, however, are not absolute. We readily conclude that we would be interpreting and applying § 14......
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Perrin v. Walker
...100, 108-109, 61 S.Ct. 868, 85 L.Ed. 1214 (1941); Bradley v. Maryland Casualty Co., 382 F.2d 415 (8th Cir. 1967); Hoyt v. Sears, Roebuck & Co., 130 F.2d 636 (9th Cir. 1942); Resident Advisory Board v. Tate, 329 F.Supp. 427 (E.D.Pa.1971); Wood v. DeWeese, 305 F.Supp. 939 (W.D.Ky. 1969); Prot......