Long v. Quinn Bros., Inc.

• Decision Date: 24 May 1913
• Citation: 215 Mass. 85,102 N.E. 348
• Parties: LONG v. QUINN BROS., Inc.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

215 Mass. 85

102 N.E. 348

LONG v. QUINN BROS., Inc.

Supreme Judicial Court of Massachusetts, Suffolk.

May 24, 1913

COUNSEL

Charles Toye and Fuller &amp Keogh, all of Boston, for appellant.

Sawyer Hardy & Stone, of Boston (Edward C. Stone, of Boston, of counsel), for appellee.

OPINION

RUGG C.J.

This is an appeal from an order of the superior court accepting the defendant's petition and bond for the removal of the cause from the superior court to the District Court of the United States for the District of Massachusetts. It is conceded by the defendant that this appeal is taken properly under R. L. c. 173, § 96, as amended by St. 1910, c. 555, § 4, and that the order allowing the petition for removal is a final judgment which disposes of the whole case. The matter is properly before us. Cotter v. Nathan & Hearst Co., 211 Mass. 31, 97 N.E. 144; Ellis v. Atlantic & Pacific R. R. Co., 134 Mass. 338.

This is an action of tort. The plaintiff in his writ is alleged to be a resident of Boston, and the defendant a corporation organized under the laws of this commonwealth having its usual place of business at Boston. The declaration is for personal injuries alleged to have been received through the negligence of the defendant. The petition for the removal to the District Court of the United States avers that the plaintiff is an alien, being a citizen of Newfoundland 'and therefore a foreign citizen or subject; and that your petitioner, Quinn Bros., Inc., which is a corporation duly organized under the laws of the commonwealth of Massachusetts, was at the time of the commencement of this suit and still is a citizen of the commonwealth of Massachusetts, and of a state, and that this suit is therefore one of a civil nature arising under the laws of the United States, of which the District Courts of the United States are given original jurisdiction by an act to codify, revise and amend the laws relating to the judiciary.' The only reason set out upon this record for removal is diversity of citizenship. Under St. U.S. 1911, c. 231, 36 Stat. 1168, known as the 'Judicial Code' (section 296 [U. S. Comp. St. Supp. 1911, p. 244]), the right of removal on the ground of diversity of citizenship is confined to a defendant or defendants who are nonresidents of the state in whose court the action is brought. See section 28.

The defendant asks leave to amend its petition for removal so as to set out the fact that the action is 'one of a civil nature arising under the laws of the United States, in that the plaintiff contests the validity of a writ, order, judgment or decree of the Circuit Court of the United States for the District of Massachusetts, which said court in an action brought by this plaintiff against this defendant for the same cause of action, as (according to your petitioner's best information and belief) that for which this suit was brought, ordered a judgment for the defendant.' We assume in favor of the defendant, but without so deciding, that its petition for removal may be treated as thus amended.

The Judicial Code in the respects here involved does not differ in substance from the previous statutes (see Act Aug. 13, 1888, c. 866, 25 Stat. 433, 434 [U. S. Comp. St. Supp. 1911, p. 508]), and decisions made under that act are equally applicable now. The practice as to removals of causes from state to federal courts has become fairly well settled. When a petition and bond are filed, it is the duty of the state court to determine whether on the face of the record a cause for removal is made out. If any issues of fact are raised these cannot be tried in the state court but must be heard and determined in the federal court upon a petition to remand. Duff v. Hildreth, 183 Mass. 440, 442, 67 N.E. 356, and cases cited.

The question, whether a cause for removal is made out as matter of law upon the face of the record, is one which the state court must consider and decide. Stone v. Sargent, 129 Mass. 503, 508. The point to be determined is whether the action at bar is one 'arising under the Constitution or laws of the United States.' It was said in Re Winn, 213 U.S. 458, at page 465, 29 S.Ct. 515, at page 516 (53 L.Ed. 873): 'It is the settled interpretation of these words, as used in this statute conferring jurisdiction that a suit arises under the Constitution and laws of the United States only when the plaintiff's...