Lund v. Chicago, R.I. & P. Ry. Co.
| Decision Date | 23 January 1897 |
| Citation | 78 F. 385 |
| Parties | LUND v. CHICAGO, R.I. & P. RY. CO. et al. |
| Court | U.S. District Court — District of Nebraska |
L. D Holmes, for plaintiff.
W. R Kelly and E. P. Smith, for defendants Union Pac. Ry. Co. and receivers.
This is a motion to remand. The suit was begun in the district court of Douglas county, Neb. It is an action for damages for personal injuries, sustained, as alleged, through the negligence of the defendants. The petition alleges that the defendants were in the joint possession of a certain line of railway reaching from Council Bluffs, Iowa, to a point west of South Omaha, Neb.; that the defendants jointly operated certain passenger trains over said railway; and that plaintiff sustained injuries because of negligence on the part of the defendants in the operation of one of the trains aforesaid. The petition prays judgment against the defendants for the sum of $25,000 and costs of suit. The defendants Union Pacific Railway Company and S. H. H. Clark, E. Ellery Anderson, Oliver W. Mink, John W. Doane, and Frederic R Coudert, receivers of said company, filed in due time a petition, together with a bond, for the removal of the cause to this court. A transcript of the proceedings in the state court was duly filed in this court. The plaintiff has filed a motion to remand the cause to the state court.
His first point is that the judge of the state court had no power to enter, at chambers, in vacation, the order removing the cause to this court, and that the removal is therefore illegal. There is nothing in this point. The jurisdiction of this court does not depend upon the order of removal entered in the state court. It is not necessary that such an order be entered. The supreme court of the United States has said (Kern v. Huidekoper, 103 U.S. 485):
'If the cause is removable, and the statute for its removal has been complied with, no order of the state court for its removal is necessary to confer jurisdiction on a court of the United States.'
Inasmuch as the removal statute was complied with in this case by the defendants petitioning for removal, if this cause is removable, the jurisdiction of this court is complete without reference to the regularity of the order of removal entered in the state court.
It is further urged in support of the motion to remand that this action is against all the defendants jointly; that one of the defendants, the Chicago, Rock Island & Pacific Railway Company, Consolidated, is a corporation organized under the laws of the state of Nebraska; that the action is not separable; and, inasmuch as one of the defendants is a Nebraska corporation, the action is not removable. The Union Pacific Railway Company is a corporation deriving its corporate powers from acts of congress. It has been decided that, since every suit against this federal corporation necessarily involved the exercise of the corporate power it received in a federal law, therefore all suits against the company were suits arising under the laws of the United States; and hence that suits against the corporation could be removed to the federal courts. Pacific Railroad Removal Cases, 115 U.S. 1, 5 Sup.Ct. 1113. The receivers of the Union Pacific Railway Company were appointed by this court. All the powers of the receivers in the possession, control, and operation of this road and properties were derived from this court. The court acted by virtue of the judicial power possessed and exercised under the constitution and laws of the United States. Therefore all the power possessed and exercised by these receivers in respect to this railroad property was by virtue of federal law. Every suit against these receivers, therefore, as it necessarily involves the exercise of these powers, is a suit arising under the laws of the United States, and is removable to the federal court. Railroad Co. v. Cox, 145 U.S. 593, 12 Sup.Ct. 905.
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...417; Landers v. Felton (C. C.) 73 F. 311; Keihl v. City of South Bend, 76 F. 921, 22 C. C. A. 618, 36 L. R. A. 228; Lund v. Chicago, R. I. & P. Ry. Co. (C. C.) 78 F. 385 (involving, however, a federal corporation); Board of Commissioners v. Peirce (C. C.) 90 F. 764; Pitkin v. Cowen (C. C.) ......
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