Huskins v. Cincinnati, N.O. & T.P. Ry. Co.

• Decision Date: 21 January 1889
• Citation: 37 F. 504
• Parties: HUSKINS v. CINCINNATI, N.O. & T.P. RY. CO.
• Court: U.S. District Court — Eastern District of Tennessee

37 F. 504

HUSKINS v. CINCINNATI, N.O. & T.P. RY. CO.

United States Circuit Court, E.D. Tennessee, Northern Division.

January 21, 1889

Washburn & Templeton, for plaintiff.

Lewis Shepherd, for defendant.

KEY, J.

The plaintiff began an action in the state court for personal injuries against the defendant. The cause was removed to this court and, while the judge was charging the jury upon its trial plaintiff's counsel were permitted to take a nonsuit. Soon thereafter plaintiff instituted another suit against the defendant in the state court for the same cause of action. In this last suit he laid his damages at $2,000. The cause was returnable to the April term, 1888, at which time, under the laws of the state, the pleadings should be made up and issue joined. The first trial term of the cause was August, 1888. At that term the defendant had permission to file an additional plea. After this was done, and on the last day of the term, plaintiff, by permission of the court, increased his claim for damages to $10,000, and continued the cause to the next term. Before the next term of the court the defendant filed its petition for the removal of the cause to this court, and presented it for action to the state court at its next session; December, 1888. This petition asked for removal upon two grounds: (1) The diverse citizenship of the parties; (2) upon the existence of local prejudice and influence. The state court ordered the removal upon the first ground, and has made no reference to the second ground. The defendant, upon the first day of the present term of this court, presented its petition, and along with it an affidavit in its support, both averring in positive terms that 'from prejudice or local influence defendant will not be able to obtain justice in the state court, or in any other state court to which the defendant might remove the cause under the laws of the state, because of prejudice or local influence. ' Defendant asks the court to remove the cause from the state court to this court, under the provisions of the fourth clause, section 2, of the act of March 3, 1887. Plaintiff has filed an answer to this petition, denying the truth of its allegations and averments as to local prejudice and has accompanied this answer with a considerable number of affidavits of intelligent and respectable persons strongly sustaining this answer. Plaintiff moves to remand the suit to the state court,-- First, because the application for removal upon the ground of diverse citizenship came too late; and second, because it is shown that the local prejudice or influence on account of which a removal is asked does not exist.

There is no question but that the application for removal came after the term of the court at which by the state law and rule of the court the defendant was required to answer or plead to the declaration or complaint of the plaintiff. Up to the close of the term at which the cause could first have been tried, the defendant had no right or power to remove the cause for diverse citizenship, because the plaintiff did not claim more than $2,000. The question is, can a plaintiff prevent, under the law, the jurisdiction of the circuit court of the United States by commencing his suit, claiming $2,000 or less, joining issue at the return term with his adversary and at the trial term, or some later period, amend his writ by increasing his claim to a sum within the jurisdiction of the federal court? The plaintiff is a citizen of this state; the defendant, of Ohio. The language of the act of 1887 is clear in regard to the time when the removal must be made for this character of citizenship. 'He may make and file a petition in such suit in such state court at the time or any time before the defendant is required by the laws of the state or the rule of the state court in which such suit is brought to answer or plead to the declaration or complaint of the plaintiff. ' There is no room for construction here. All is clear and unambiguous. But what was the suit in this case? The damages-- the money plaintiff seeks to recover-- is the gravamen, the heart, the soul of his suit. The suit he began was a suit for $2,000, and such a suit it remained until the closing hour of the first term at which it could have been tried when the plaintiff went into court and converted his suit for $2,000 into a suit for $10,000. The $2,000 suit disappeared. It merged into and was swallowed up by a suit for $10,000. The life of the new suit began at the moment the first suit expired. Plaintiff's complaint was no longer for $2,000, but it became a complaint for five times that sum. Under the laws of Tennessee process issued upon a suit instituted must be executed at least five days before the time for the meeting of the court, so as to be issuable at that term. If such process be executed at a later day it is not issuable until the next succeeding term. The suit for $10,000 did not begin until the last day of the August term, 1888, of the court, and the suit, according to the letter and spirit of the act of 1887, would not be returnable at the shortest before the next term of the court, and defendant's petition was filed before that time. In general phrase, and in most respects, the amendment increasing the damages did not create a new suit, but so far as the jurisdiction of this court is concerned it was new, and a liberal interpretation will be allowed to prevent the flagrant and intentional defeat of its jurisdiction. 'If the defendant have a right to the removal, he cannot be deprived of it by the allowance by the state court of an amendment reducing the sum claimed after the right of removal is complete. ' Speer, Rem. Causes, 81. Kanouse v. Martin, 15 How. 198. This being true, is not the converse of the proposition true; that is, that a person not entitled to a removal who becomes entitled to it, so far as the jurisdictional amount is concerned, by reason of an amendment allowed by the state court after the time had elapsed within which his removal of the suit might have been made, shall not be deprived of his right to remove the suit? The reasons why the removal of the cause should not be defeated in one case apply with...