Missouri, K. & T. Ry. Co. v. Chappell

• Decision Date: 28 February 1913
• Docket Number: 1,074.,1,084
• Citation: 206 F. 688
• Parties: MISSOURI, K. & T. RY. CO. v. CHAPPELL et al. CHAPPELL v. MISSOURI, K. & T. RY. CO.
• Court: U.S. District Court — Western District of Oklahoma

206 F. 688

MISSOURI, K. & T. RY. CO. v. CHAPPELL et al.

CHAPPELL v. MISSOURI, K. & T. RY. CO.

Nos. 1,084, 1,074.

United States District Court, W.D. Oklahoma.

February 28, 1913

[Copyrighted Material Omitted]

Clifford L. Jackson and M. D. Green, both of Muskogee, Okl., C. G Hornor, of Guthrie, Okl., and John E. Du Mars, of Oklahoma City, Okl., for plaintiff.

A. N Munden and S. A. Horton, both of Oklahoma City, Okl., and Milton Brown, of Guthrie, Okl., for defendants.

POPE District Judge.

The facts in the case are as follows:

Laura Chappell, the plaintiff in case 1,074, on August 9, 1912, filed her petition against the Missouri, Kansas & Texas Railway Company in the district court of Oklahoma county, state of Oklahoma, alleging, among other things, 'that she is a resident of Oklahoma county, state of Oklahoma. ' The pleadings show that on October 22, 1911, she purchased a first-class ticket over defendant's line from Guthrie, Okl., to Oklahoma City, Okl. She was accompanied by five children, as to two of whom the conductor demanded the payment of fare. Plaintiff offered to pay for one of these as being the only one over five years of age, but the conductor refused to accept passage for the party upon such terms, and ordered her off the train at a station called Fallas. It is claimed that no one offered to help her off the train, and that in alighting she sprained her ankle, misplacing the socket in some way, and that, being a stranger in the place, she found difficulty in securing accommodations, and was obliged to go a distance of more than a mile to secure shelter for the night for herself and her children, and was obliged to make a similar trip the next morning to the depot, from which fact and by reason of the inclemency of the weather she was subjected to exposure and contracted cold, and one of the children pneumonia. Upon returning to the train the following morning she was given passage upon the same terms which, it is alleged, were declined the day before. The allegation is that the conduct of so much of the train crew as participated in the matter was willful, malicious, and reckless. There is an allegation that she was caused humiliation, pain, and suffering, and permanent injury, by reason of the facts above set forth.

The original petition as filed claimed $1,900 actual damage and $1,000 exemplary damages, and thus a total of $2,900, for which judgment was asked. The summons issued on August 9, 1912, requiring the defendant company to answer on or before September 10, 1912. Service was made on August 12, 1912, and the summons returned served August 14, 1912. On September 9, 1912, and thus within the time provided for answer, the defendant company filed with the clerk of said court its petition for removal, together with a bond. The bond bears an endorsement of approval by the clerk on September 9, 1912, the same day upon which it was filed. On September 7, 1912, a copy of the petition for removal was served on plaintiff's counsel, together with a notice that it would be presented to the state court on September 9, 1912. It is alleged that the petition was presented on the date just named to the state judge, and taken under advisement by him until September 26, 1912. On September 26, 1912, plaintiff presented to the state judge a motion to reduce the claim to $1,950 by interlineation. This motion was sustained by the court over the defendant's exception, and the petition amended so that the actual damages claimed were in the sum of $1,500, and the exemplary damages in the sum of $450, making the total of $1,950, above stated. Thereupon, and on the same day, September 26, 1912, the petition for removal was taken up by the court and denied over defendant's exception. On September 27, 1912, the case was further called by the state court, and the defendant adjudged in default. On October 1, 1912, the defendant filed in this court a transcript of the proceedings in the state court. On October 12, 1912, the defendant appeared in the state court under protest and asked for an order setting aside the default, which motion was on the same day denied.

Thereupon, on October 19, 1912, defendant brought its bill in equity in this court, being No. 1,084, alleging that plaintiff was threatening to proceed with the case in the state court, to restrain the plaintiff, Chappell, and her counsel, and the sheriff of Oklahoma county, state of Oklahoma, from proceeding further under case No. 1,074, being case No. 12,520 in the state court. Case No. 1,084 is pending at the present time upon demurrer, and case 1,074 upon certain motions to amend the petition for removal, to be presently considered.

It is definitely settled by decisions of the Supreme Court of the United States in a long line of cases-- latest of which is Madison Traction Company v. St. Bernard Mining Co., 196 U.S. 239, 25 Sup.Ct. 251, 49 L.Ed. 462, and among the clearest of which are Railroad v. Dunn, 122 U.S. 513, 7 Sup.Ct. 1262, 30 L.Ed. 1159, Cameron v. Hodges, 127 U.S. 322, 8 Sup.Ct. 1154, 32 L.Ed. 132, Crehore v. Railway Co., 131 U.S. 240, 9 Sup.Ct. 692, 33 L.Ed. 144, and Powers v. Railway Co., 169 U.S. 92, 18 Sup.Ct. 264, 42 L.Ed. 673--as follows: (1) That upon the filing of a petition for removal in due time, with a proper bond, the case is in law removed, and the state court in which it is pending loses jurisdiction to proceed further, and all subsequent proceedings in that court will be void.

(2) After presentation of a sufficient petition and bond, it is competent for the District Court, by a procedure ancillary in its nature--without violating Revised Statutes, Sec. 720 (U.S. Comp. St. 1901, p. 581), forbidding a federal court from enjoining proceedings in a state court-- to restrain the party against whom a cause has been legally removed from taking further steps in the state court.

(3) 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.

(4) If a suit entered upon the docket of a District Court as removed was never in law removed from the state court, no amendment of the record made in the federal court can affect the jurisdiction of the state court, or put the case rightfully on the docket of the federal court, and no amendment can be made in the federal court to show that the case was a proper one to have been removed.

(5) If, however, sufficient grounds for removal are shown on the record as presented to the state court, including the petition for removal, the latter may be amended in the federal court by showing more fully and distinctly the facts which support those grounds.

(6) There is no waiver of the right to removal by defendants making their defense in the state court, after that court has, over defendant's objection, declined to surrender jurisdiction in the case.

(7) In determining whether there is a case for removal, it is the duty of the state court to examine, not only the petition for removal, but the rest of the record.

Bearing these rules in mind, we come to the grounds of demurrer urged against the bill to restrain further proceedings in the state court. It is urged first against this injunction suit that it is in effect a suit to restrain proceedings in a state court, and thus precluded by Revised Statutes, Sec. 720, forbidding a federal court from enjoining proceedings in a state court. Paragraph (2) above, however, is conclusive as against this contention. See, also, Donovan v. Wells, Fargo & Co., 169 F. 363, 94 C.C.A. 609, 22 L.R.A. (N.S.) 1250.

It is further contended that this suit may not be maintained because the amount involved is less than $3,000, the sum fixed by the Judicial Code as the minimum for jurisdictional purposes in cases of this character in this court. This contention would, of course, be forceful, were this an original and independent suit. Its functions, however, are purely ancillary, to wit, the protection of the jurisdiction of this court over the suit at law which the railroad company is attempting to remove into this court. Under such circumstances the amount is not controlling of the jurisdiction. If, as we shall presently consider, the suit sought to be removed involved the necessary jurisdictional sum, the present suit in aid of the other is maintainable, notwithstanding the fact that at the date of its filing the jurisdictional amount had been advanced to $3,000. The measure of the matter goes back to the original right; and if, under the law to be presently considered, that right is within the jurisdiction of this court upon removal, the present case, as ancillary thereto, is likewise within the jurisdiction of the court. In such auxiliary proceedings it has been held from a very early date that diversity of citizenship was not material. Freeman v. Howe, 24 How. 450, 16 L.Ed. 749; Dunlap v. Stetson, 4 Mason, 349, Fed. Cas. No. 4,164. For similar reasons such a suit may be maintained without reference to the amount involved. White v. Ewing, 159 U.S. 36, 15 Sup.Ct. 1018, 40 L.Ed. 67; Brown v. Morgan (C.C.) 163 F. 395.

There is also the contention that a sufficient remedy is afforded the railroad company by proceedings at law in the state court, to wit, by the motion to vacate filed by it, from the adverse ruling on which it has the right of appeal to the Supreme Court of the state. It is clear, however, upon the authorities above cited, that this is no answer to complainant's bill. It is a well-recognized rule, as we have seen, that litigants in the federal court are not relegated to the state tribunals for the assertion of a right to prosecute their suits upon removal to the federal court,...