Kirby v. Chicago & N.W.R. Co.

• Decision Date: 31 December 1900
• Docket Number: 3,643.
• Citation: 106 F. 551
• Parties: KIRBY et al. v. CHICAGO & N.W.R. CO.
• Court: U.S. District Court — Southern District of Iowa

106 F. 551

KIRBY et al. v. CHICAGO & N.W.R. CO.

No. 3,643.

United States Circuit Court, S.D. Iowa, Central Division.

December 31, 1900

J. M Parker, for the motion and plea.

F. F Dawley, opposed.

McPHERSON District Judge.

This controversy grows out of condemnation proceedings, the company seeking a strip of ground across lands owned by Myers and others for railroad purposes, and they seeking compensation therefor. The four persons by name of Myers seem to be tenants in common, and the owners of the land. Kirby is executor of the estate of Mrs. Reed, deceased, the former owner. Each of the said parties was, when the proceeding commenced, at all times since has been, and still is, a resident and citizen of a state of the United States other than the state of Illinois; all but one being residents and citizens of Iowa. The railway company is a nonresident of Iowa, and is a resident and citizen of Illinois, and was when the action was commenced, and at all times since has been. The amount or sum in controversy, exclusive of interest and costs, is in excess of $2,000. The initiative was by the company in March, 1900. The sheriff of the county summoned six commissioners to appraise the damages, by reason of the land appropriated. After due notice to all parties, and the commissioners being duly qualified, the damages were fixed at $2,000. From this award the landowners alone appealed to the district court of Marshall county, in which court the appeal was duly docketed. In due time the railway company, alleging itself to be the defendant, filed its petition in due form and a sufficient bond for a removal of the case to this court upon the grounds of diverse citizenship and the amount involved. At no time has any allegation of residence citizenship, or the amount involved been controverted or put in issue. In the Marshall county district court the landowners filed written objections to said removal, which court sustained the objections, and overruled the application for a removal. In due time the railway company filed a transcript of all papers and proceedings in this court. In the meantime the district court of Marshall county, over the objections of the company, proceeded to and did try the said appeal, resulting in awarding damages in the sum of $3,600. From that verdict by the district court of Marshall county the railway company appealed to the Iowa supreme court, where the appeal is still pending, not as yet reached for submission or trial. In this court, at this time, the landowners have filed both a motion to remand to the state court and a plea in abatement for the like purpose, and this motion and plea are now for determination on the foregoing statement of facts.

There are a few propositions that admit of no argument. One is that a defendant, and a defendant only, can have a case removed, and such defendant must be a nonresident. One not a defendant cannot bring a case by removal to this court, nor can a resident defendant. These propositions are statutory. If the company was, when it filed its petition, entitled to a removal, then it is wholly immaterial what objections the landowners filed. All lawyers know this. It is also immaterial whether the state court made, or refused, or simply omitted to make any order with reference to the removal. This is within the common knowledge of all lawyers. It is equally immaterial that the state court made an order denying the application for removal. It is of no importance that the state court retained the case, and tried it, with the company taking part in the controversy. It is of no consequence that the company was present in the state court, resisting the claim for damages, after its petition for removal was denied; and it is no objection to this court taking jurisdiction that the company has appealed to the Iowa supreme court. That by doing any of those things is not a waiver of its rights to try the case in this court has been held over and over again. Kern v. Huidekoper, 103 U.S. 485, 26 L.Ed. 354. It was said in that case:

'It has been expressly held by this court that, when a case has been properly removed from a state into a United States court, and the state court still goes on to adjudicate the case, against the resistance of the party at whose instance the removal was made, such action on its part is a usurpation; and the fact that such a party has, after the removal, contested the suit, does not, after judgment against him, constitute a waiver on his part of the question of the jurisdiction of the state court to try the case.'

In that case the court had, as in the case at bar, denied the removal of the case, because, if the case was removable, then all orders, and verdicts, and judgments of the Iowa courts subsequent to the filing of the petition for removal are void. There was but one order that the state court could possibly make, and that was to make the order for removal; and it is immaterial whether that order was made. In the language of the statues: 'It shall then be the duty of the state court to accept the petition and bond, and proceed no further in such suit. ' If the case were in fact removable, it is my duty to retain jurisdiction. In that event all complications arising in the state courts have been brought about by the landowners. And, if the case were not removable, then anything done by this court will be of no avail. All orders, both by this court and the state courts, can finally be presented to the one court for review. So that it is the duty of this court and of the state courts to determine the matters, each court for itself.

The question of importance is, was the case one that could be removed, and shall the applications to remand be sustained? As above stated, a petition for removal can be entertained only when filed by a nonresident, who must be a defendant. That the company was a nonresident is too plain for discussion, and the fact need only be stated.

1. Was and is it a defendant? The details of condemnation proceedings are regulated by statute. But the limitations of the power of eminent domain are to be found in the constitution, one provision of which is as follows: 'Private property shall not be taken for public use without just compensation first being made, or secured to be made to the owners thereof, as soon as the damages shall be assessed by a jury. ' This is followed by a rule for the damages. Another provision of the constitution is, 'The right of trial by jury shall remain inviolate. ' The Iowa supreme court has held that the appraisers, or commissioners, by whatever name, who, in the first instance, fix the damages, are not jurors, and that statutes which do not provide for an appeal to a jury of 12 men are unconstitutional and void, because in conflict with the two constitutional provisions quoted. Of course, a jury can be waived, and is waived by being in default in a law action for damages, or in a condemnation proceeding by not taking an appeal, or by accepting the money awarded by the three or six commissioners. The Iowa statutes provide that upon application of either the landowner or the company the sheriff shall summon six commissioners to appraise the damages. As either party could set the wheels in motion, and as it seems to me there would be no difference whether it was the landowner or the company who first ask the sheriff to act, I conclude that this case is in no way controlled because of the fact the company took the initiative for having the damages fixed. The parties could not agree, and the one party or the other must ask the sheriff to act. The sheriff and his commissioners did act. Plaintiffs were allowed $2,100. The plaintiffs could have taken the sum, and the controversy would have been at an end. This must be so, because the company, I assume, would have paid that, as it took no appeal. It, from necessity, for plaintiffs' use and benefit, deposited that sum with the sheriff. It also was required to pay all costs. Then the company took possession, and appropriated the strip of land. Then we next have a controversy in the Marshall county district court. The landowners placed the case there. For what purpose? Claiming damages for the appropriation by the company of the strip of land, because this strip of land had been, or could have been, entered upon by the company, provided it deposited $2,100. The tribunal, or whatever it was, of the sheriff, was statutory, and not recognized by the constitution as one to which the parties could go. The state court was the first tribunal in which effect could be given to the provision that 'the rights of trial by jury shall remain inviolate,' and that other provision that private property may be taken for public use 'as soon as the damages shall be assessed by a jury. ' And it was the landowners who placed the case in the Marshall county district court, and this without the consent of the company, which was driven there because of the constitutional rights of the landowners. So we have a controversy in the Marshall county district court. It is taken there by the landowners. The company is there as any defendant is in court. It is taken there, and the company is not asking relief in that court. It already has what it wants, viz. the strip of land. But the landowners are there asking affirmative relief, viz. damages. I add the statement-- to me of little importance, and certainly not controlling-- that the Iowa statute, in providing for the appeal, recites, 'The landowner shall be plaintiff and the corporation defendant. ' I cite this to show that the company is at least called a defendant. But I think it is an actual defendant, in view of the situation of the parties before the state district court.

2. Is this a case that is removable? The act of congress o...