Morgan v. Kroger Grocery & Baking Co.

• Decision Date: 22 April 1938
• Docket Number: No. 11078.,11078.
• Citation: 96 F.2d 470
• Parties: MORGAN v. KROGER GROCERY & BAKING CO.
• Court: U.S. Court of Appeals — Eighth Circuit

96 F.2d 470 (1938)

MORGAN v. KROGER GROCERY & BAKING CO.

No. 11078.

Circuit Court of Appeals, Eighth Circuit.

April 22, 1938.

Gus O. Nations, of St. Louis, Mo. (J. M. Feigenbaum, of St. Louis, Mo., on the brief), for appellant.

Lyon Anderson, of St. Louis, Mo. (Wayne Ely and Leahy, Walther, Hecker & Ely, all of St. Louis, Mo., on the brief), for appellee.

Before GARDNER, SANBORN, and THOMAS, Circuit Judges.

GARDNER, Circuit Judge.

This is an appeal from an order which restrained and enjoined appellant, plaintiff below, her attorneys and agents, from prosecuting any further proceedings or taking any steps in this cause in the circuit court of the city of St. Louis, Mo., where the action was first begun, and from which court there was an attempted removal. We shall refer to the parties as they appeared in the lower court.

The action was brought by plaintiff against the city of St. Louis and the above-named Kroger Grocery & Baking Company, for damages on account of personal injuries alleged to have been caused by her fall on the icy sidewalk in front of the Kroger store. It was alleged that her injury was caused by the negligent failure of both of the defendants to keep the sidewalk clear of ice.

The defendant Kroger Grocery & Baking Company filed a petition to remove the action to the United States District Court upon the ground that "the controversy herein is a separable one, wholly between citizens of different states; that the plaintiff, Mary E. Morgan, at the time of the commencement of this suit, ever since has been and still is a citizen and resident of the State of Missouri, residing in the City of St. Louis in said State, and that your petitioner, Kroger Grocery & Baking Company, was at the time of the commencement of this suit, ever since has been and still is a corporation existing under and by virtue of the laws of the State of Ohio, and is a citizen and resident of said State of Ohio, and not a resident of Missouri." The state court, on presentation of the petition and bond for removal, declined to sign an order of removal, being of the view that no separable controversy was disclosed by the record. The Kroger Company then filed in the lower court a transcript of the record of the state court, including the order of the state court denying removal. It then filed its application for an injunction to restrain and enjoin plaintiff from prosecuting her action in the state court.

Plaintiff challenged the jurisdiction of the lower court on the ground that the cause had not been removed and was not removable because the record showed that no separable controversy existed. The court held that the cause had been duly removed from the state court; that it therefore had jurisdiction; and it accordingly entered the injunctional order from which this appeal is prosecuted.

Appellee contends that this court has no jurisdiction to entertain the appeal because the order attempted to be appealed from is not an appealable order. The procedure is somewhat unusual, in that the question of the removability of a cause is generally presented by motion to remand, the ruling on which is reviewable upon appeal from the final judgment. The order appealed from, however, is an injunctional order, appeal from which is apparently authorized by section 129 of the Judicial Code, as amended, Title 28, section 227, U. S.C.A., which allows appeals where "an injunction is granted, continued, modified, refused, or dissolved by an interlocutory order or decree." It is said that the appeal will not lie because the order was not issued in an equity suit. Formerly, this section 129, 28 U.S.C.A. § 227 note employed the following language: "That where, upon a hearing in equity in a district court or in a circuit court, or by a judge thereof in vacation, an injunction shall be granted or continued * * * by an interlocutory order or decree * * * an appeal may be taken from such interlocutory order or decree," etc.

The section, however, was amended, and there was eliminated from the above-quoted language the words "in equity," so that it now reads as follows: "Where, upon a hearing in a district court, or by a judge thereof in vacation, an injunction is granted, continued, modified, refused, or dissolved by an interlocutory order or decree, * * * an appeal may be taken from such interlocutory order or decree to the circuit court of appeals."

There would seem to be no doubt that under section 129 the order was appealable. Shanferoke, etc., Corporation v. Westchester Corporation, 293 U.S. 449, 55 S.Ct. 313, 79 L.Ed. 583; Cray, McFawn & Co. v. Hegarty, Conroy & Co., 2 Cir., 85 F.2d 516, 517. The last-cited case is very similar in facts to the instant case. It was there contended that the order appealed from was not appealable. Overruling this contention, the court said: "But an appeal is specially provided from an interlocutory order granting an injunction. 28 U.S.C. § 227, 28 U.S.C.A. § 227. Accordingly it would seem inevitable that upon an appeal from such an order as the one before us, grounded as it was...