Pelzer Mfg. Co. v. Hamburg-Bremen Fire Ins. Co.

• Decision Date: 22 June 1894
• Citation: 62 F. 1
• Court: U.S. Court of Appeals — Fourth Circuit
• Parties: PELZER MANUF'G CO. v. HAMBURG-BREMEN FIRE INS. CO.

62 F. 1

PELZER MANUF'G CO. v. HAMBURG-BREMEN FIRE INS. CO.

United States Circuit Court, D. South Carolina.

June 22, 1894

Smythe & Lee, G. G. Wells, and Haynsworth & Parker, for the motion.

Julius H. Heyward, opposed.

SIMONTON Circuit Judge.

The plaintiff in this case, which was brought in the circuit court of South Carolina for Greenville county, is a citizen of the state of South Carolina. The defendant, at the time suit was brought, was and has continued to be a corporation created under the laws of Germany. The cause has been removed into this court, upon the ground that it is between a citizen and an alien. This motion is to remand it to the state court, on the ground that, notwithstanding this fact, it is not a removable cause. We can always examine into the character of the case to determine whether it be within the jurisdiction of this court. Arrowsmith v Gleason, 129 U.S. 99, 9 Sup.Ct. 237; Barrow v Hunton, 99 U.S. 80.

Suit had been brought in the circuit court of South Carolina for Greenville county by the plaintiff against this defendant on two policies of insurance against fire,-- one for $5,500, and the other for $2,500. The complaint in the action counted on both policies, setting them forth in two separate causes of action,-- one cause of action on one policy, the other on the other. The case came up for trial 24th March, 1891. There were ready for trial, at the same term of the same court several separate actions by the same plaintiff against several separate insurance companies for the loss by the same fire. All of these cases, including the one now in question, depended upon the very same facts, and the same issues of law as well as fact. Two of these were tried, and a verdict had for plaint plaintiff. Thereupon it was agreed that the jury should find a verdict in each case for plaintiff, subject to the right of appeal on the part of the defendant. In the hurry and confusion of taking all their verdicts, a verdict was taken on the case before us on only one cause of action,-- that of the $5,500 policy,-- and the other policy was overlooked. Appeals were entered. All the cases, including this one, went into the supreme court of South Carolina, upon exceptions (15 S.E. 562), none of which were as to the amounts of the verdicts, and the judgments below were all affirmed. In this case the judgment had been entered on the verdict as found, one cause of action having been omitted. On 29th June, 1892, the defendant paid to the plaintiff the whole amount of the judgment as entered, with costs, and thereupon satisfaction was entered as of record on the judgment. The plaintiff remained in ignorance of this mistake or omission which had been committed until 15th February, 1894, and then endeavored to get the defendant to rectify it. This being refused, the suit was brought 4th May, 1894. The complaint sets out these facts. The prayer for relief is as follows:

'(1) That the mistake of the said jury be corrected, and their verdict reformed, and the judgment corrected so as to allow plaintiff judgment for said twenty-five hundred dollars, with interest thereon from May 15, 1889, being sixty days from the time of the fire at which said loss occurred; (2) that the judgment rendered in said action having been satisfied, that plaintiff have now judgment anew for said twenty-five hundred dollars, with interest thereon from May 15, 1889, and for the costs of this action; (3) and for such other and further relief as plaintiff may be entitled.'

The motion to remand is based on the contention that this suit is in fact ancillary or auxiliary to the former suit, a graft upon it, and not an independent and separate litigation. It therefore is not removable. Bank v. Turnbull, 16 Wall. 195. The law is stated by that eminent jurist, Mr. Justice Bradley, thus: 'The question presented with regard to the jurisdiction of the circuit court is whether the proceeding is or is not in its nature a separate suit, or whether it is a supplementary proceeding, so connected with the original suit as to form an incident to it, and substantially a continuation of it. If the proceeding is merely tantamount to the common-law practice of moving to set aside a judgment for irregularity, or to a writ of error, or to a bill of review, or an appeal, it would belong to the latter category, and the United States court could not properly entertain jurisdiction of the case. ' Barrow v. Hunton, 99 U.S. 82.

The essential questions, therefore, are, what relief is sought by this plaintiff? Could he obtain such relief in the state court in which the first cause was tried by any motion or proceeding in said cause? Is this proceeding one wholly independent, based on some new ground for relief. The relief sought is to correct a mistake in a verdict on which judgment was entered 24th March, 1891. The purpose is to correct the mistake in the verdict, by adding to it the amount of the second cause of action, and then entering a judgment thereon. Could this relief be obtained in the state court in which the cause was tried by any motion or proceeding in that cause? The cause has ended by...