El Paso & Southwestern Co. v. Riddle

• Decision Date: 01 March 1923
• Docket Number: 136.
• Citation: 287 F. 173
• Parties: EL PASO & SOUTHWESTERN CO. et al. v. RIDDLE.
• Court: U.S. District Court — Western District of Texas

287 F. 173

EL PASO & SOUTHWESTERN CO. et al. v. RIDDLE.

No. 136.

United States District Court, W.D. Texas, El Paso Division.

March 1, 1923

Del W Harrington, of El Paso, Tex., for complainants.

Whitaker & Peticolas, of El Paso, Tex. (W. M. Peticolas, of El Paso Tex., of counsel), for defendant.

SMITH District Judge.

J. M Riddle, the defendant in this case, on the 10th day of September, 1921, filed suit in the Forty-First district court of the state of Texas, against the El Paso & Southwestern Company, El Paso & Southwestern Railroad Company, the El Paso & Northeastern Railroad Company, and the El Paso &amp Southwestern Railroad Company of Texas, complainants herein, and hereinafter referred to as the railroad companies, to recover of them damages in the sum of $6,150, alleged to have grown out of a shipment of cattle over complainants' lines of railway. The case being removable, the railroad companies duly presented to the state court petition and bond for removal, which was granted, and on November 26, 1921, filed transcript in this court, and on December 24, 1921, filed their answer, which consists only of a general denial. No motion has been made to remand, and no further proceedings of a material character have been taken in the case, and it is now pending, numbered 765 at law, on the docket of this court.

After the removal of said case to this court, Riddle on December 16, 1922, filed suit in the Sixty-Fifth district court, of El Paso, Tex., against the same railroad companies upon the same cause of action, but claimed a less amount of damages, to wit, only $2,999, a sum without the jurisdiction of this court. This suit in equity was filed on January 25, 1923, by the railroad companies, praying for an injunction restraining Riddle from further prosecuting the last-named case in the state court. The bill of complaint was presented to me in chambers on the 25th day of January, 1923, and, upon hearing, an order was made citing Riddle to appear on February 3, 1923, and show cause, if any he had, why a preliminary injunction should not be issued against him as prayed for, and a temporary restraining order was issued to operate meanwhile.

On January 30, 1923, Riddle filed his motion in said cause No. 765 at law in this court, announcing that he would no longer prosecute said case, and prayed that same be dismissed without prejudice, at his costs, and in his answer to the bill of complaint he pleads that injunction should not be granted because of his said motion to dismiss and discontinue said cause in this court. The railroad companies insist that, as the second case in the state court involves the same cause of action as the one removed, this court should view the second case as a wrongful attempt to deprive them of their right to have the removed case tried in this court, and upon that ground should deny the motion to dismiss, and this is the question now to be decided. If the voluntary motion of Riddle to dismiss the removed case should be sustained, then there would be no basis upon which to grant an injunction.

In determining the right of a plaintiff to dismiss or take nonsuit, and in deciding when and how he may do so in the federal court, we must, under the conformity statute, look to the law and rules of practice of the state courts. Barrett v. Virginia Ry. Co., 250 U.S. 473, 39 Sup.Ct. 540, 63 L.Ed. 1092; Cybur Lumber Co. v. Erkhart, 247 F. 284, 159 C.C.A. 378; McCabe v. Southern Ry. Co. (C.C.) 107 F. 213; Conn. Fire Ins. Co. v. Manning, 177 F. 893, 101 C.C.A. 107. A statute of Texas provides that:

'At any time before the jury have retired, the plaintiff may take a nonsuit, but he shall not thereby prejudice the right of an adverse party to be heard on his claim for affirmative relief; when the case is tried by the judge such nonsuit may be taken at any time before the decision is announced. ' Vernon's Sayles' Civil Stats. 1914, art. 1955.

The general rule is that a plaintiff may discontinue his action as a matter of course within the limitations set by the statute, which are only that it must be done before the jury retires or before the judge announces his decision upon the merits, and when to do so will not prejudice the right of the adverse party to be heard on his claim for affirmative relief. As the Supreme Court of Texas expresses it in the case of Hoodless v. Winter, 80 Tex. 638, 16 S.W. 427:

'It is only when the defendant by a counterclaim seeks some 'affirmative relief' that the right of the plaintiff to discontinue the entire cause is forbidden. Obviously, the defendant only seeks such affirmative relief when by his own pleadings he prays for some specific recovery that cannot be given to him under pleadings that are strictly defensive and that serve only to compel the plaintiff to prove his own cause of action. * * * If the defendant is doing no more than resisting the plaintiff's recovery, the statutes recognize the right of the plaintiff for his own protection to dismiss the suit.'

The case here sought to be dismissed belongs to this latter class, for the answer of the railroad companies goes only to a denial of the allegations on which Riddle bases his action. They ask for no affirmative relief of any kind.

That plaintiffs have the same right to discontinue cases removed from state to federal courts, after removal, is a proposition so well settled and applied so often that it cannot be questioned; and it has often been decided that when a case removed to the federal court is voluntarily dismissed, it is again at large, and the plaintiff is again at liberty to begin it again in any court of competent jurisdiction. Southern Ry. Co. v. Miller, 217 U.S. 209, 30 Sup.Ct 450, 54 L.Ed. 732; Gassman v. Jarvis (C.C.) 100 F. 146; Texas Cotton Products Co. v. Starnes (C.C.) 128 F. 183, affirmed 133 F. 1022, 66 C.C.A. 673; Tex. & Pac. Ry. Co. v. Maddox, 26 Tex.Civ.App. 297, ...