Pennsylvania Co v. Bender

• Decision Date: 20 March 1893
• Docket Number: No. 1,142,1,142
• Parties: PENNSYLVANIA CO. v. BENDER
• Court: U.S. Supreme Court

148 U.S. 255

13 S.Ct. 591

37 L.Ed. 441

PENNSYLVANIA CO.

v BENDER.

No. 1,142.

March 20, 1893.

On motion to dismiss the writ of error. Granted.

Statement by Mr. Justice BREWER:

On September 12, 1887, the defendant in error filed his petition in the court of common pleas of Holmes county, Ohio, to recover from the defendant, the Pennsylvania Company, the sum of $10,000. On October 3d the defendant answered. On March 2, 1888, it filed a petition for removal to the United States circuit court for the northern district of Ohio. On March 24th a motion was made to strike this petition from the files, which on March 27th was sustained. At the May term, 1888, a trial was had, both parties appearing. A verdict was returned by the jury for $6,000, upon which judgment was duly entered. Thereafter a petition in error was filed in the circuit court of Holmes county to reverse such judgment. To this petition in error were attached two transcripts, one of the record in the court of common pleas, and the other of a certain journal entry of the circuit court of the United States for the northern district of Ohio. This journal entry was as follows:

'George S. Bender, administrator, vs. The Pennsylvania Company. Law. Tuesday, March 6, 1888. This day came on to be heard the petition of the defendant for an order for the removal of this case from the court of common pleas of Holmes county, Ohio, and, it appearing to the court that the defendant has filed in this court its petition, bond, and affidavit under the 2d section of the act of congress of March 3, 1887, entitled 'An act to determine the jurisdiction of circuit courts of the United States and to regulate the removal of causes from state courts, and for other purposes,' &c., from which it appears to the court that said affidavit is in compliance with said 2d section of said act of congress, and that said bond is sufficient and satisfactory, and that said defendant, by its petition, affidavit, and bond, has shown that it is entitled to remove cause to this court.'

In that court a motion was made to strike the petition in error from the files, which motion was sustained. Thereupon the defendant filed its petition in error in the supreme court of the state to reverse this ruling. On May 17, 1892, that court sustained the ruling of the circuit court, and affirmed the judgment, to reverse which judgment of affirmance plaintiff in error sued out a writ of error from this court. The case is now submitted on a motion to dismiss.

L. R. Critchfield, for the motion.

Lucien L. Gilbert and J. R. Carey, opposed.

Mr. Justice BREWER, after stating the facts in the foregoing language, delivered the opinion of the court.

So far as the record of the case in the court of common pleas is concerned, there is obviously no error, and no semblance of a federal question. The petition there filed for removal was manifestly defective. It simply alleged that the plaintiff was a resident of the state of Ohio, and did not show his citizenship. In the petition in error filed in the circuit court no complaint was made of the order of the court of common pleas, striking out this petition for removal. Looking, therfore, only at the record of the court of common pleas, as it was presented to the circuit court, there was but one thing that it could do, and that was to affirm the judgment.

The contention, however, of the plaintiff in error, is that the order made in the United States court prior to the trial in the common pleas operated, by virtue of the act of congress of March 3, 1887, to oust the common pleas court jurisdiction, and remove the case to the federal court, and that, therefore, the subsequent proceedings of trial and judgment were coram non judice and void.

But no order of removal was made by the federal court. The journal entry, which is certified by the clerk to be the entire entry, is simply a finding that the application for removal is sufficient, and such as entitles the defendant to remove the cause to the federal court. But such finding does not remove the case, any more than an order overruling a demurrer to a petition makes a judgment. Such an order is simply an adjudication of the right of the plaintiff to a judgment. Upon it alone execution cannot issue. There must be a judgment, or, in other words, an order based upon the determination of the right. A mere finding that the party is entitled to a removal is no order, and does not of itself work the removal.

There is a difference between the act of 1887 and earlier statutes in respect to the provisions for removals. Thus, in the act immediately prior,—that of 1875,—the proceedings were these: The party desiring to remove filed in the state court his petition and bond, which, being done, the act provided that 'it shall then be the duty of the state court to accept said petition and bond, and proceed no further in such suit,' and also that upon the filing of the copy of the record in the circuit court of the United States 'the cause shall then proceed in the same manner as if had been originally commenced in the said circuit court.' Under that statute the proceedings were had in the state court, proceedings, therefore, of which it had knowledge; and the specific provision was that upon the filing of a sufficient petition and bond the state court should accept them, and proceed no further. No adjudication by the state court of the sufficiency of the petition and bond was essential, no failure of such adjudication prevented a removal, and yet the state court had a right to examine and see whether the petition and bond were sufficient. As said in Removal Cases, 100 U. S. 457, 474, 'we fully recognize the principle heretofore asserted in many cases, that the state court is not required to let go its jurisdiction until a case is made which upon its face shows that the petitioner can remove the cause, as a matter of right.'

The act of 1887 (volume 24, p. 522, § 2) establishes a different procedure, as follows: 'Any defendant * * * may remove such suit into the circuit court of the United States, for the proper district, * * * when it shall be made to appear to said circuit court that, from prejudice or local influence, he will not be able to obtain justice in such state court.' There is no specific declaration when proceedings in the state court shall stop. The right to a removal is determined by the federal court, and determined upon evidence satisfactory to it. When it is satisfied that the...