Kansas City & T. Ry. Co. v. Interstate Lumber Co.

• Citation: 36 F. 9
• Court: U.S. District Court — Western District of Missouri
• Decision Date: 27 August 1888
• Parties: KANSAS CITY & T. RY. CO. v. INTERSTATE LUMBER CO.

36 F. 9

KANSAS CITY & T. RY. CO. v. INTERSTATE LUMBER CO.

United States Circuit Court, W.D. Missouri, Western Division.

August 27, 1888

Crittenden McDougal & Stiles, for petitioner.

Kagy &amp Bremerman and Jefferson Brumback, for defendant.

PHILIPS J.

The petitioner instituted this proceeding in one of the circuit courts of Jackson county, Mo., for the condemnation to its use of certain land belonging to the defendant. The petitioner is a railroad corporation, claiming the right of condemnation under grant of power therefor under the statutes of this state. Both parties are non-residents. On service of summons on defendant, it appeared before the state court, and filed its petition for the removal of the cause to this court. The removal was accordingly made. The record from the state court is properly returnable to the next session of the United States circuit court, which would be the third Monday of October next; but the petitioner appears here and presents the record, and, after notice to the defendant, moves the court to remand the cause for the reason that this court has no jurisdiction over the subject-matter, with the further suggestion that, if this court should hold that the removal was well taken, the court then proceed to appoint commissioners, pursuant to the statute, to assess the damages, without waiting therefor until the next session of this court.

The motion to remand presents for determination the question of practice whether or not this court can entertain such motion prior to the term of court in which the defendant is required to file the copy of the record. By the third section of the removal act of 1875, as well as by that of 1887, the party removing the cause is required to give bond 'for his or their entering in such circuit court, on the first day of its then next session, a copy of the record in such suit for their appearing and entering bail, etc.; and, the said copy being entered as aforesaid in said circuit court, the cause shall then proceed in the same manner as if it had been originally commenced in the said circuit court. ' There can be no question but that in contemplation of this statute the cause would not be for hearing until the next regular term of the United States court occurring after such removal. It has been held, however, that this statute does not prevent the other party from bringing up and filing in the United States court such copy of the record, and this he may do at any day before the return-day; but the cause itself could not be proceeded in prior to the term at which, by the terms of the bond, the removing party is required to present the record, and enter his appearance. It is also well settled that from the time of entering the motion, and tendering the required bond for removal, the jurisdiction of the state court over the subject-matter of the suit ceases, and the jurisdiction of the United States circuit court attaches eo instanti; but the exercise of that jurisdiction begins when the copy of the record is entered in court. Railroad Co v. Koontz, 104 U.S. 5-14. The case is supposed to be docketed on filing the transcript. Spear, Fed. Jud. 520. This would be the docket of the next session for the purpose of the exercise of jurisdiction in proceeding to the hearing trial, and determination of the cause. As jurisdiction over the case itself is not to be left in absolute suspense between its cessation in the state court and the next session of the United States circuit court, the very necessities of justice, and the preservation of the rights of the plaintiff, would demand that the latter court should exert its jurisdictional power, under certain contingencies, ad interim. This, it has been held, it may do on presentation of the record and notice to the adverse party, in the instance of issuing the writ of injunction, or some reverse party, in the instance of issuing the writ of injunction, or some restraining order to preserve the status of the case, or to appoint a receiver, and to issue the writ of attachment in said of the suit. Dill. Rem. Causes, 71; Mining Co. v. Bennett, 4 Sawy. 289; Railroad Co. v. Railroad Co., 5 Fed.Rep. 160; In re Railway Co., 2 McCrary, 216, 4 F. 10. So it was held, orally, by Judge DILLON, when judge of this circuit, that between the time of the order of removal in the state court, and the filing of the record in the United States court, depositions might be taken de bene esse. These are in the nature of provisional remedies and orders, designed to preserve the essential rights of the parties, in preventing a failure of justice. In other words, they are agencies to preserve the statu quo of the parties prior to the act of removal. It seems to me that it would be a forced construction of these rulings to extend them to the instance of remanding the cause prior to the return-day. In order to remand this cause, the court must review the petition, and consider the whole question of jurisdiction, the subject-matter of the controversy, and the character of the parties as disclosed by the petition. If the cause is remanded, it is a final determination of the case, a final judgment, so far as this court is concerned. As the law now stands, it is a judgment not reviewable on appeal or writ of error. It is final. It certainly was not within the contemplation of the framer of the act that the party taking the removal could be thus turned out of the United States court prior to the return-day of the case. It is true, the removal act, section 5, act 1875, which is not repealed by the act of 1887, provides that, if it...