Illinois Cent. R. Co. v. Jones' Adm'r

• Decision Date: 06 May 1904
• Citation: 80 S.W. 484,118 Ky. 158
• Parties: ILLINOIS CENT. R. CO. v. JONES' ADM'R.
• Court: Kentucky Court of Appeals

80 S.W. 484

118 Ky. 158

ILLINOIS CENT. R. CO. v. JONES' ADM'R.

Court of Appeals of Kentucky.

May 6, 1904

Appeal from Circuit Court, Lyon County.

"To be officially reported."

Action by William Jones' administrator against the Illinois Central Railroad Company. From a judgment in favor of plaintiff, defendant appeals. Reversed.

E. H James, F. A. Wilson, Jno. C. Gates, P. H. Darby, J. M Dickinson, and Pirtle, Trabue & Cox, for appellant.

Hendricks & Miller and Mulloy & Utley, for appellee.

O'REAR J.

On a former appeal (66 S.W. 609) we held that the petition by appellant, the Illinois Central Railroad Company, for the removal of this cause into the United States Circuit Court did not show, nor did the whole record show on its face, a separable controversy, and therefore that the lower court did not err in refusing to order the removal. After the motion for removal had been overruled in the state court, appellant filed a transcript of the record in the United States Circuit Court for the District of Kentucky, at Paducah. Appellee appeared in that court and moved to remand the case. The order of the court overruling the motion to remand recited that it was upon evidence heard. What the evidence was, the record does not show. Time was given by the order in that court to appellee to file a bill of exceptions, and to the defendant to file its answer, and to the plaintiff (appellee) time thereafter in which to reply. At a subsequent term of that court, appellee appeared, and dismissed his petition, without prejudice. In the meantime the case in the state court was being proceeded with. Upon the return of the case from this court, appellant offered to file a supplemental answer alleging the filing of the transcript in the United States Circuit Court, and the various steps taken therein, including the dismissal of the petition without prejudice. The court refused to permit the amendment, or the exhibits, copies of the proceedings in the federal court, to be filed. That action is one of the grounds now urged for a reversal of the judgment.

Appellant contends that as there was but the one action, when it was removed into the United States Circuit Court by the filing of the transcript, and by the overruling in that court of the motion to remand, thereafter an appearance by the plaintiff (appellee) was a waiver of the question of jurisdiction over his person, if there was such question, and the subsequent dismissal of the action without prejudice was actually a dismissal of the identical action now being tried. On the other hand, appellee contends that unless the United States Circuit Court had jurisdiction of the subject-matter, to wit, a controversy involving more than $2,000, wholly between citizens of different states, or was separable, so that when separated it would constitute such an action, jurisdiction could not be conferred upon that court by waiver or consent; that therefore all proceedings there were void.

Under the act of Congress (sections 2, 3, Act March 3, 1875, c. 137; sections 1-10, as amended, Act March 3, 1887, c. 373, 24 Stat. 552; Act Aug. 13, 1888, c. 866, 25 Stat. 433 [U. S. Comp. St. 1901, p. 508]), if the petition for removal be filed in the state court in due season, and be accompanied by sufficient bond and motion, and if the petition states facts showing, or if it and the record together then show, a prima facie right to the removal by the petitioner, it is the duty of the state court to proceed no further than to satisfy itself as to the sufficiency of the bond. The proper practice then is for the other party, if dissatisfied, to controvert in the federal court the facts alleged in the petition for the removal, and have the case then remanded, if improperly removed. If the state court orders this removal upon an insufficient petition, the party aggrieved may also prosecute an appeal at once to the state appellate court to have the order reviewed.

In recent years the right of removal has been more frequently and stubbornly resisted, and, without doubt, artful subterfuges have been resorted to by pleaders to control the question of jurisdiction. When that question depends upon a fact properly made an issue, the ascertainment of such fact is necessarily within the sole jurisdiction of the United States courts, and their determination of jurisdictional facts is conclusive, binding alike upon the parties and state courts. If the facts properly alleged in the petition for removal of this case showed such a separable controversy between appellant railroad company, a citizen of Illinois, on the one side, and appellee, a citizen of Kentucky, on the other, which could and ought to be tried without regard to the presence of or right to have either of the other defendants joined in the suit, then the federal court had jurisdiction of this case. But whether, upon the facts stated in the petition and record, there was presented a federal case, was within the jurisdiction of the state court to adjudge. Kansas City, etc., R. R. Co. v. Daughtry, 138 U.S. 298, 11 S.Ct. 306, 34 L.Ed. 963; McDonald v. Salem Capital Flourmill Co. (C. C.) 31 F. 577; Burlington, C. R. & N. Ry. Co. v. Dunn, 122 U.S. 513, 7 S.Ct. 1262, 30 L.Ed. 1159; Stone v. South Carolina, 117 U.S. 430, 6 S.Ct. 799, 29 L.Ed. 962.

While the state courts cannot inquire whether the facts alleged in the petition for removal are true, yet, when the petition for removal and the record do not show a prima facie right to the removal, the state court may refuse to surrender the case and will proceed to its trial. Filing a copy of the record in the federal court upon such an insufficient petition does not, in our opinion, give the latter court jurisdiction to try the question of jurisdictional facts. If both the state and federal courts could try the same facts as to jurisdiction, different conclusions might be reached, and unseemly conflict and confusion result. To avoid these, the Congress has wisely made the condition of the federal court's jurisdiction to depend upon the filing in the state court, in due time, of a petition, in which, according to the unbroken current of the decisions of the federal courts construing the act, all necessary facts to show prima facie a right in the petitioner for the removal must be set out, not as conclusions of law, or such necessary facts must affirmatively and explicitly appear elsewhere in the record when the application to the state court for the removal is made. Crehore v. Ohio, etc., R. Co., 131 U.S. 240, 9 S.Ct. 692, 33 L.Ed. 144; Freeman v. Butler (C. C.) 39 F. 1 (opinion by Barr, District Judge); Seddon v. Virginia, T. & C. S. & I. Co. (C. C.) 36 F. 6, 1 L.R.A. 108...