Newell v. Byram

• Decision Date: 04 May 1928
• Docket Number: No. 7955.,7955.
• Citation: 26 F.2d 200
• Parties: NEWELL v. BYRAM et al.
• Court: U.S. Court of Appeals — Eighth Circuit

26 F.2d 200 (1928)

NEWELL v. BYRAM et al.

No. 7955.

Circuit Court of Appeals, Eighth Circuit.

May 4, 1928.

Samuel A. Anderson, of St. Paul, Minn., for plaintiff in error.

A. C. Erdall, of Minneapolis, Minn. (F. W. Root and C. O. Newcomb, both of Minneapolis, Minn., on the brief), for defendants in error.

Before WALTER H. SANBORN and LEWIS, Circuit Judges, and PHILLIPS, District Judge.

WALTER H. SANBORN, Circuit Judge.

The provisions of the statutes of the United States by which the questions in this case must be decided are contained in this extract from title 28, § 76, USCA (section 33, Judicial Code; Comp. Stat. § 1015):

"When any civil suit or criminal prosecution is commenced in any court of a state * * * against any officer of the courts of the United States for or on account of any act done under color of his office or in the performance of his duties as such officer, * * * the said suit or prosecution may at any time before the trial or final hearing thereof be removed for trial into the District Court next to be holden in the district where the same is pending upon the petition of such defendant to said District Court."

Receivers appointed by a court of the United States are officers of that court within the meaning of this statute.

The facts which condition the decision of the questions raised in this case are these:

On September 8, 1926, Nora Newell, the plaintiff, commenced this action against H. E. Byram, Mark W. Potter, and Edward J. Brundage, who had been duly appointed, had taken possession of, and were operating in the performance of their duties as such receivers pursuant to the orders of the United States District Court for the District of Minnesota, the Chicago, Milwaukee & St. Paul Railway, to recover of them $30,000 damages on account of a personal injury which she alleged that they, as receivers, had inflicted upon her by their negligent and wrongful failure properly to operate their crossing gates at a railroad crossing in Minneapolis, Minn., while she was crossing the railroad and they were operating it as receivers. In this action she joined with these receivers as defendants, Jacob Vogt, their gateman, and Walter Crouch, their engineer on the locomotive which drew the train that she alleged injured her. She averred that these receivers were at the time of her alleged injury in possession of and operating this railroad, and that they and the defendant Crouch drove the engine drawing the train over the crossing at a speed of 12 miles an hour, and wrongfully failed to give any warning signal and without closing the gates.

The defendants on November 17, 1926, answered this complaint that the receivers were in possession of and operating the railroad, that Vogt and Crouch were their employees at the time of the alleged negligence, denied any negligence, and alleged that whatever injuries the plaintiff sustained were caused by her own want of care.

On November 27, 1926, the receivers presented their petition to the United States District Court below for the issuance of its writ of certiorari to the state court, for a removal of this suit from that court to the United States court under and pursuant to title 28, § 76, U. S. C., above quoted. In their petition they alleged the commencement of the plaintiff's action against them as receivers, their appointment as receivers of the railroad by the court below, their possession and operation thereof under its orders at the time of the alleged injuries, and they attached to their petition and made a part of it the complaint of the plaintiff. The court below on November 27, 1926, issued the writ of certiorari and removed the case to the federal court. On December 10, 1926, the plaintiff made a motion to remand the case to the state court, and filed an answer to the petition for the writ of certiorari, in which she alleged that it appeared from her complaint, and the fact was, that her cause of action "is based upon common-law negligence of said defendants, and each of them; * * * that the negligence charged against the defendants, and each of them, consists in the failure to operate and close the crossing gates furnished and existing and equipped for such purpose, the operation of which was specifically committed to the charge of the defendant Jacob Vogt, and negligence of the defendant receivers through their locomotive engineer in charge of the train specified, said engineer being defendant Walter Crouch, in that he operated said train at said time at an unlawful rate of speed." This answer also specifically denied "the allegations in said petition (for the writ) to the effect that the supposed facts set forth in the complaint and...