Parks v. Montgomery Ward & Co.
| Decision Date | 26 August 1952 |
| Docket Number | No. 4446.,4446. |
| Parties | PARKS v. MONTGOMERY WARD & CO. |
| Court | U.S. Court of Appeals — Tenth Circuit |
Robert R. Hasty and George E. Hasty, Wichita, Kan., for appellant.
Emmet A. Blaes, Wichita, Kan. (Jochems, Sargent & Blaes, Wichita, Kan., on the brief), for appellee.
Before PHILLIPS, Chief Judge, and BRATTON and PICKETT, Circuit Judges.
Alta Pauline Parks instituted in the state court this action against Montgomery Ward & Co. to recover damages for personal injuries, alleging among other things that defendant operated a retail store at a described location in Wichita, Kansas; that when wet, oily, greasy, or otherwise covered with liquid or semi-liquid substance, the floor in such store was slippery and dangerous to walk upon unless covered by carpeting, matting, or other protective covering; that on the date set forth, defendant negligently permitted the floor to become and remain wet and slippery and failed to provide a dry footing for persons walking thereon; that plaintiff entered the store for the purpose of purchasing merchandise; that due to the condition of the floor, she slipped and fell; and that she sustained personal injuries. Assuming that the cause had been effectively removed to the United States Court, trial was had to a jury. When plaintiff concluded the presentation of her case in chief, defendant interposed a motion for a directed verdict on the ground that the evidence failed to establish actionable negligence on the part of the defendant. The motion was sustained, a directed verdict was returned, judgment was entered accordingly, and plaintiff appealed. After entry of the judgment and after notice of appeal therefrom had been filed, plaintiff lodged in the case a motion to vacate the judgment and remand the case to the state court. The ground of the motion was that the proceeding had not been properly removed to the United States Court. The motion was denied and plaintiff appealed from that action. For convenience, continued reference will be made to the parties as plaintiff and defendant, respectively.
Error is assigned upon the denial of the motion to vacate the judgment and remand the case to the state court. It appeared from the face of plaintiff's petition filed in the state court and the petition for removal that plaintiff was a resident and citizen of Kansas; that defendant was a corporation organized under the laws of Illinois; that the controversy was exclusively between citizens of different states; and that the amount in controversy exceeded $3,000, exclusive of interest and cost. Notice of removal to the United States Court on the ground of diversity of citizenship with the requisite amount in controversy was given plaintiff by the mailing of a copy of the motion to her attorney. The motion recited among other things that defendant had filed in the United States Court its petition for removal, together with a bond conditioned that defendant would pay all costs and disbursements incurred by reason of the removal proceedings should it be determined that the case was not removable, or was improperly removed. Four days after the giving of the notice in that manner, the petition for removal, the bond on removal, and the notice of removal were filed in the United States Court. The files in the office of the clerk of the state court failed to contain a copy of the petition for removal and the record in that court did not make any reference to a copy of such petition having been filed. Section 1446(e) of the Judicial Code, 28 U.S.C. § 1446(e), provides that promptly after the filing of the petition for removal, the defendant or defendants shall give written notice thereof to all adverse parties and shall file a copy of the petition for removal with the clerk of the state court, which shall effect removal. The giving of the notice of removal before the filing of the petition and bond for removal constituted an irregularity, and the failure to file with the clerk of the state court a copy of the petition for removal constituted noncompliance with a plain requirement of the statute. But the action was one falling within the original jurisdiction of the United States Court for Kansas, and plaintiff could have instituted it in that court in the first instance. Parties cannot by consent confer upon a court jurisdiction of the subject matter of an action which it would not have possessed without such consent. And voluntary action of parties in the nature of waiver cannot confer jurisdiction of an action if the court would not have had jurisdiction of the subject matter without the waiver. But where a suit of which the United States Court may entertain original jurisdiction is instituted in the state court and the defendant obtains its removal, even though the removal is irregular, defective, or unauthorized, and plaintiff acquiesces in such removal by seeking relief from the United States Court,...
To continue reading
Request your trial
-
Mahoney v. J. C. Penney Co.
...fits the present case like a glove, and, to me, is legally unanswerable. The majority has failed to mention Parks v. Montgomery Ward & Co. (10 C.C.A.1952), 198 F.2d 772, which, in an opinion by Judge Bratton, 'There was no showing at to how long the condition had existed, whether defendant ......
-
Costello v. City of Wheeling, 11088
... ... 607, 222 S.W.2d 789; Schmoll v. National Shirt Shops, 354 Mo. 1164, 193 S.W.2d 605; Parks v. Montgomery Ward & Co., 10 Cir., 198 F.2d 772; Fanelty v. Rogers Jewelers, Inc., 230 N.C. 694, 55 ... ...
-
Cheyenne-Arapaho Gaming v. National Indian Gaming
...matter jurisdiction on the courts by agreement), Donahue v. Warner Bros. Pictures, 194 F.2d 6, 10 (10th Cir.1952), Parks v. Montgomery Ward & Co., 198 F.2d 772 (10th Cir.1952) (holding that parties cannot by consent confer upon a court jurisdiction of the subject matter of an action which i......
-
Peterson v. BMI Refractories, Inc.
...court is entitled "Application, Affidavit, and Entry of Default and Default Judgment," which was submitted by Mr. Fisher to the court in Montgomery. Under oath, Mr. Fisher stated: "That the defendant was served with a copy of the Statement of Claim or Complaint on (date) August 3, 1995.... ......