Nelson v. Black Diamond Mining Co.
| Decision Date | 08 December 1916 |
| Citation | 237 F. 264 |
| Parties | NELSON v. BLACK DIAMOND MINING CO. et al. |
| Court | U.S. District Court — Western District of Kentucky |
D. M Roll, of Greenville, Ky., and B. F. Proctor, of Bowling Green, Ky., for plaintiff.
S. C Eaves, of Greenville, Ky., and W. P. Sandidge, of Owensboro Ky., for defendants.
This action was brought in the Muhlenberg circuit court on August 14, 1914, by O. P. Nelson, a citizen of Kentucky, against the Black Diamond Mining Company (which we shall call the Mining Company), a citizen of Delaware, and W. B. Franklin, a citizen of Kentucky, for the recovery of $15,000 for personal injuries. On September 7, 1914, the Mining Company, after proper notice, filed in the state court its petition for the removal of the action to this court. This petition alleged that the citizenship of the respective parties was as above shown, and stated in detail facts which, not being controverted, amply show that the joinder of Franklin as a defendant was altogether fraudulent and collusive, and was made with the sole intent thereby to prevent a removal of the action.
This petition, therefore, was sufficient in law under the rulings in Chesapeake & Ohio Co. v. Cockrell, 232 U.S. 146 154, 34 Sup.Ct. 278, 58 L.Ed. 544, Russell v. Champion Fiber Co. (C.C.A.) 214 F. 965, and many other cases. The proper bond was given at the time and was approved by the state court. The case was thus effectively removed to this court, regardless of the fact that Franklin, a citizen of Kentucky, was a party defendant.
No denial of any of the allegations of the petition for removal was in any manner made by the plaintiff, and they must be taken as true. Atlanta, etc., Ry. v. Southern Ry., 153 F. 122, 126, 82 C.C.A. 256, 11 Ann.Cas. 766; Dishon v. Cincinnati, etc., Ry. Co., 133 F. 471, 66 C.C.A. 345; Kentucky v. Powers, 201 U.S. 34, 26 Sup.Ct. 387, 50 L.Ed. 633, 5 Ann.Cas. 692.
The state court having refused to enter an order removing the case, proceedings progressed to a trial, at which that court instructed a verdict for both defendants. Judgment having been rendered accordingly the case was taken to the Court of Appeals, which court in January, 1916, reversed the judgment of the lower court as to the Mining Company, but affirmed it as to Franklin. The case was remanded by the Court of Appeals to the Muhlenberg circuit court, and on April 21, 1916, a motion was made and sustained to remove the case to this court. On May 15th for the first time a transcript of the record was filed here by the Mining Company.
As we have very recently held in Key v. West Kentucky Coal Co., 237 F. 258, a case cannot be removed on a mere 'motion' made in the state court, and particularly after (the transcript having been filed) a motion to remand the case has been sustained by the federal court. The statute does not authorize the removal of a case on motion. That must be done upon a petition which conforms to the requirements of the law at the time it is filed. Here, as we have seen, the case was actually removed in September, 1914, though no attempt was made by either party to file a transcript of the record in this court until after all the proceedings in the state court to which we have referred had been had.
However, as the petition for removal was per se sufficient, and as the proper bond was given and approved by the state court when the petition was filed, no order of the state court removing the case to this court was necessary. It was, ipso facto, removed by the filing of the petition for removal and the giving of the bond. Crehore v. Ohio, etc., Ry., 131 U.S. 243, 9 Sup.Ct. 692, 33 L.Ed. 144; Marshall v. Holmes, 141 U.S. 595, 12 Sup.Ct. 62, 35 L.Ed. 870; Stevenson v. Illinois Central R.R. (C.C.) 192 F. 958, and cases cited. Accordingly we shall treat the removal of the case as completed in September, 1914.
The Mining Company lost none of its rights by following the case in the state courts, as has been clearly settled by the authorities. Powers v. Chesa. & Ohio Ry. Co., 169 U.S. 103, 18 Sup.Ct. 264, 42 L.Ed. 673, and cases there cited and many others. As has been stated, no transcript was filed in this court until May, 1916, nor was any motion made to remand the case until the one we are now considering was entered by the plaintiff on November 27, 1916. No question as to delay was raised, or perhaps thought of, when the transcript was filed here. Instead of afterwards objecting to the filing of the transcript, because of its being too late, the plaintiff, on June 22, 1916, filed an amendment to his own petition, endeavoring thereby to more perfectly state his cause of action against the Mining Company.
The plaintiff's motion to remand is in this language:
'Comes the plaintiff, O. P. Nelson, and moves the court to remand the above-styled cause to the Muhlenberg circuit court in and for the county of Muhlenberg and state of Kentucky on the grounds that this court is without jurisdiction to hear and determine this cause for the fact that plaintiff's petition alleges and...
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Leonard v. St. Joseph Lead Co., 9905.
...C. R. Co. v. Sheegog, 215 U. S. 308, 30 S. Ct. 101, 54 L. Ed. 208; Clancy v. Brown (C. C. A. 8) 71 F.(2d) 110; Nelson v. Black Diamond Min. Co. (D. C.) 237 F. 264; Bradshaw v. Bowden (D. C.) 226 F. 323. The cause of action must be determined by reference to the well-pleaded facts of the pla......