Kansas City & T.R. Co. v. Interstate Lumber Co.
| Decision Date | 10 December 1888 |
| Citation | 37 F. 3 |
| Court | U.S. District Court — Western District of Missouri |
| Parties | KANSAS CITY & T.R. CO. v. INTERSTATE LUMBER CO. |
Crittenden McDougal & Stiles, for plaintiff.
Brumback & Brumback and Kagy & Brennerman, for defendant.
This case stands on a motion to remand. The proceeding in the state court was one for the condemnation of a right of way. It was commenced on the 5th day of June, 1888, by the filing in the office of the clerk of the circuit court of Jackson county, Mo., of a petition. On the 16th day of June the defendant filed its petition and bond for removal, and on August 27th the plaintiff took a copy of the record from the state court, filed it in this, and with it a motion to remand. Defendant objected to the hearing of that motion, on the ground that it was prematurely filed; that by the terms of its application for removal it had until the first day of the next succeeding term of the federal court in which to file the record; and that, while the plaintiff might undoubtedly at once take and file a copy of the record here yet the case was not thereby so fully transferred to this court as to justify it in making such a final order as is involved in the decision of a motion to remand. It was conceded that the jurisdiction of the state court ceased on the filing of the petition and bond, and that, when the record was filed here, this court had jurisdiction for any provisional remedies and orders necessary to preserve the rights of the parties ad interim, and only the right to make full and final determination was denied. After due consideration, this court sustained the positions of defendant, and held that the motion to remand could not then be entertained; and the first question presented is whether the case now stands in any different shape than at that time. The next regular term of this court commenced on the third Monday of October, and at that time the defendant, by the terms of its bond, was to have the record filed in this court. Before that date an act of congress took effect changing the time of the fall term from the third Monday of October to the first Monday of September. This act was not passed until about the middle of September; too late for a regular September term this fall, and yet without any saving clause as to this year's October term. Hence a regular term became impossible. Under sections 669 and 670 of the Revised Statutes, a special session was called for the fourth Monday of October. By the provisions of these sections any business which could be transacted at a regular term could be transacted at this special term, and the act changing the terms provided in its second section as follows:
'All process issued from the clerk's office of said courts when the act takes effect shall be taken and considered as returnable to the next term or terms hereby established in lieu of the term or terms existing at the time such process was issued.'
While this, in terms, refers to process issued from the clerk's office, and may not in the letter apply to removal proceedings, yet in spirit it does. The September term was in lieu of the October term. The removal proceedings were commenced in August, and that was before the time fixed for a September term. Of course no subsisting and substantial right of either plaintiff or defendant can be destroyed by a mere change in the time of a term; but it will be sacrificing substance to form, and upholding the letter as against the spirit, to refuse to consider the case fully before the court at this special term, and to defer till next spring the consideration of the motion to remand. We therefore hold, the record having been filed in this court for some months, and a special term being held at which all business transactable at a regular term may be transacted, and the September term being in lieu of the October term, and both of these terms being after the commencement of the removal proceedings, that the case is fully before us, and that it is our duty to entertain and determine this motion to remand.
The second question is whether the proceeding was removable from the state court at the time the removal proceedings were had, and this depends upon the question whether the proceeding was then a suit of a civil nature at law or in equity, within the purview of the removal acts. This question might have been one of considerable difficulty but for the ruling of the supreme court in the case of Searl v. School-Dist., 124 U.S. 197, 8 S.Ct. 460, which seems to settle the question adversely to the plaintiff.
The remaining question, and the one of the most difficulty, is this: It appears that both plaintiff and defendant are non-residents of this district. It is clear that under the act of March 3, 1887, the plaintiff could not have brought the defendant into this court by original process, or at least could not have compelled it to stay here against its will, and the contention is that, as this court could not take original jurisdiction, it cannot take jurisdiction by removal. This requires an examination of the two sections of the act of March, 1887; an examination in the light of the construction placed by the supreme court on prior removal acts. The first section, so far as is material, reads: 'That the circuit courts of the United States shall have original cognizance concurrent with the courts of the several states of all suits of a civil nature at common law or in equity, * * * in which there shall be a controversy between citizens of different states;' and in a subsequent sentence: ' The second section provides that 'any suit of a civil nature at law or in equity, * * * of which the circuit courts of the United States are given original jurisdiction by the preceding section, may be...
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