Kettelhake v. American Car & Foundry Co.

• Citation: 147 S.W. 479
• Parties: KETTELHAKE v. AMERICAN CAR & FOUNDRY CO.
• Decision Date: 31 May 1912
• Court: United States State Supreme Court of Missouri

147 S.W. 479

KETTELHAKE v. AMERICAN CAR & FOUNDRY CO.

Supreme Court of Missouri, Division No. 1.

May 31, 1912.

1. COURTS (§ 231) — SUPREME COURT — JURISDICTION OF CASES INVOLVING CONSTITUTIONAL QUESTIONS.

While the Supreme Court's jurisdiction of an appeal involving the construction of the federal or state Constitution does not depend on the validity of the claim set up under the Constitution, such claim must involve a substantial dispute, and must be real, and not fictitious.

2. COURTS (§ 231) — SUPREME COURT — JURISDICTION OF CASES INVOLVING CONSTITUTIONAL QUESTIONS.

An assignment of error that the court erred in refusing to sustain defendant's application for the removal of the cause to the federal courts does not give the Supreme Court jurisdiction as involving the construction of the federal or state Constitution, since the right of removal is not given by the federal Constitution, but depends entirely on the construction of federal statutes, and the Supreme Court is only given jurisdiction when the validity, as distinguished from the construction of a statute, is involved.

3. COURTS (§ 231) — SUPREME COURT — CASES INVOLVING "AUTHORITY EXERCISED UNDER THE UNITED STATES."

An alleged error in refusing an application to remove a cause to the federal court does not involve the validity of an "authority exercised under the United States" so as to give the Supreme Court jurisdiction of the appeal; that ground of jurisdiction involving acts done by federal officers or agents by virtue of authority having its foundation in the federal laws.

Appeal from St. Louis Circuit Court; M. N. Sale, Judge.

Action by Agnes Kettelhake against the American Car & Foundry Company. From a judgment for plaintiff, defendant appeals. Transferred to the St. Louis Court of Appeals.

This suit was brought by the plaintiff against the appellant, a corporation of the state of New Jersey, together with William W. Eilers and Quincy Martin, both citizens and residents of the state of Missouri, on account of the alleged negligent killing of her husband by defendants while running an engine and cars belonging to the appellant. Its purpose, as stated in the petition, was to recover $10,000 in accordance with the provisions of section 2864 of the Revised Statutes of Missouri 1899, as amended by the act entitled "Damages and Contributions in Actions of Tort," approved April 13, 1905 (R. S. 1909, § 5425). At the close of the plaintiff's evidence, the court peremptorily instructed the jury to find for each of the defendants Eilers and Martin, and refused a similar instruction asked by the remaining defendant for itself. The plaintiff then took a nonsuit as to each of said defendants with leave to move to set the same aside. The appellant thereupon filed its petition for the removal of the cause to the Circuit Court of the United States for the Eastern Division of the Eastern District of Missouri on the ground of the diverse citizenship of the remaining parties, together with its removal bond with securities admittedly qualified. The petition for removal was thereupon denied by the court, to which appellant excepted. The trial proceeded, resulting in a verdict and judgment for plaintiff for $5,400, from which this appeal is taken. Thereupon plaintiff filed her motion to set aside the nonsuit as to Eilers and Martin and reinstate the cause as to them, which was overruled by the court. The appellant in due time filed its motion for a new trial, assigning, among other grounds, that the court erred in refusing to sustain its application for removal, and stating that this action was in contravention of section 2, art. 3, of the Constitution of the United States; also of article 6 of the Constitution of the United States; also of the Act of Congress of the United States of America, designated as Act March 3, 1875, c. 137, 18 Stat. 470, as amended by Act Cong. March 3, 1887, c. 373, 24 Stat. 552, as corrected by Act Cong. Aug. 13, 1888, c. 866, 25 Stat. 433 (U. S. Comp. St. 1901, p. 508), which act and the amendments thereto relate to the jurisdiction of the Circuit Court of the United States and the removal of causes from state courts to the courts of the United States; and also in violation of the fifth and fourteenth amendments to the Constitution of the United States and section 30 of article 2 of the Constitution of Missouri.

Watts, Gentry & Lee, for appellant. George Safford, for respondent.

BROWN, C. (after stating the facts as above).

The judgment of the circuit court was not sufficient in amount to sustain the jurisdiction of this court on that ground. It is claimed, however, that we have jurisdiction of this appeal because the case involves the construction of the Constitution of the United States or of this state, and that the validity of a statute of or authority exercised under the...