Lawrence Trust Co. v. Chase Sec. Corp.

• Decision Date: 27 November 1935
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court
• Parties: LAWRENCE TRUST CO. v. CHASE SECURITIES CORPORATION. WESTERN MASSACHUSETTS BANK & TRUST CO. v. SAME. PLYMOUTH COUNTY TRUST CO. v. SAME.

292 Mass. 481
198 N.E. 905

LAWRENCE TRUST CO.
v.
CHASE SECURITIES CORPORATION.
WESTERN MASSACHUSETTS BANK & TRUST CO.
v.
SAME.
PLYMOUTH COUNTY TRUST CO.
v.
SAME.

Supreme Judicial Court of Massachusetts, Essex.

Nov. 27, 1935.

Actions of contract or tort by the Lawrence Trust Company against the Chase Securities Corporation, by the Western Massachusetts Bank & Trust Company against the Chase Securities Corporation, and by the Plymouth County Trust Company against the Amerex Holding Corporation. From orders allowing removal of the actions to the District Court of the United States, the plaintiffs appeal.

Orders affirmed.

Appeals from [292 Mass. 481]Superior Court, Essex County; Gray and Broadhurst, judges.
[292 Mass. 482]F. L. Simpson, of Boston (D. J. Cohen and J. A. Scolponeti, both of Boston, with him) for appellants.

M. Jenckes and R. Donaldson, both of Boston, for appellee.

RUGG, Chief Justice.

The writ in each of these actions, sued out of the Superior Court, is brought in the name of a banking corporation organized under the laws of this commonwealth against the Chase Securities Corporation, now known as Amerex Holding Corporation, organized under the laws of the state of New York. Each cause of action is described as contract or tort. Each plaintiff is stated, in the writ or declaration or both, to be in the possession of Henry H. Pierce, commissioner of banks for this

[198 N.E. 906]

commonwealth. The defendant in each action seasonably filed a petition under sections 28 and 29 of the Judicial Code of the United States (U.S.C.A. title 28, §§ 71, 72), that the suit by removed to the District Court of the United States for the District of Massachusetts because the action was of a civil nature, the amount in dispute exceeded $3,000 exclusive of interest and costs and the plaintiff and the defendant were citizens and residents of different states, and that the bond filed therewith be accepted as good and sufficient. In each case an order was entered accepting the petition and bond and in substance allowing or directing the removal of the suit to the District Court of the United States, and the plaintiff appealed to this court.

The appeals are rightly before us. Ellis v. Atlantic & Pacific R. Co., 134 Mass. 338;Long v. Quinn Bros., Inc., 215 Mass. 85, 86, 102 N.E. 348;Munnss v. American Agricultural Chemical Co., 216 Mass. 423, 424, 103 N.E. 859;Commonwealth v. Norman, 249 Mass. 123, 126, 144 N.E. 66.

The plaintiffs raise no question as to form or seasonableness of the petition for removal, the sufficiency of the bond, or the jurisdictional amount involved. The single contention presented in behalf of each plaintiff is that the case is not subject to removal because it is in its essential nature and effect an action brought by the commonwealth through one of its administrative officers and, as the commonwealth is not considered a citizen within the meaning of the removal statute, the petition for removal on the ground of [292 Mass. 483]diversity of citizenship fails in law. If that contention is sound, the cases are not removable. Commonwealth v. Norman, 249 Mass. 123, 127, 144 N.E. 66;Stone v. South Carolina, 117 U.S. 430, 433, 6 S.Ct. 799, 29 L.Ed. 962;Title Guaranty & Surety Co. v. State of Idaho For Use of Allen, 240 U.S. 136, 140, 36 S.Ct. 345, 60 L.Ed. 566;Lankford v. Platte Iron Works Co., 235 U.S. 461, 35 S.Ct. 173, 59 L.Ed. 316;Puerto Rico v. Russell & Co., 288 U.S. 476, 484, 53 S.Ct. 447, 77 L.Ed. 903;City Bank Farmers' Trust Co. v. Schnader, 291 U.S. 24, 29, 54 S.Ct. 259, 78 L.Ed. 628.

On a petition for removal all issues of fact must be tried in the federal court, as well those relating to the removability of the cause as those touching the merits of the suit. The state court is without jurisdiction in that particular but must accept as true in determining whether to surrender jurisdiction the allegations of fact set forth in the petition. Burlington, Cedar Rapids & Northern R. Co. v. Dunn, 122 U.S. 513, 515, 516, 7 S.Ct. 1262, 30 L.Ed. 1159;Kansas City, Fort Scott & Memphis Railroad & Daughtry, 138 U.S. 298, 303, 11 S.Ct. 306, 34 L.Ed. 963;Chesapeake & Ohio R. Co. v. Cockrell, 232 U.S. 146, 154, 34 S.Ct. 278, 58 L.Ed. 544.

It is, however, ‘wll settled that if, upon the face of the record, including the petition for removal, a suit does not appear to be a removable one, then the state court is not bound to surrender its jurisdiction, and may proceed as if no application for removal had been made.’ Madisonville Traction Co. v. St. Bernard Mining Co., 196 U.S. 239, 245, 25 S.Ct. 251, 253, 49 L.Ed. 462;Stone v. South Carolina, 117 U.S. 430, 432, 6 S.Ct. 799, 29 L.Ed. 962;Oakley v. Goodnow, 118 U.S. 43, 6 S.Ct. 944, 30 L.Ed. 61;Kimball v. Evans, 93 U.S. 320, 23 L.Ed. 920;Southern R. Co. v. Lloyd, 239 U.S. 496, 36 S.Ct. 210, 60 L.Ed. 402;Chesapeake & Ohio R. Co. v. Cockrell, 232 U.S. 146, 34 S.Ct. 278, 58 L.Ed. 544;Great Northern R. Co. v. Alexander, 246 U.S. 276, 38 S.Ct. 237, 62 L.Ed. 713. There is nothing contrary to this proposition in Chesapeake & Ohio R. Co. v. McCabe, 213 U.S. 207, 29 S.Ct. 430, 53 L.Ed. 765.

It has been the practice and held to be the duty of this court in cases properly brought before it, to consider and decide whether as matter of law a cause for removal is made on the face of the...