Pickwick-Greyhound Lines v. Shattuck

• Decision Date: 21 October 1932
• Docket Number: No. 617.,617.
• Citation: 61 F.2d 485
• Parties: PICKWICK-GREYHOUND LINES, Inc., v. SHATTUCK.
• Court: U.S. Court of Appeals — Tenth Circuit

61 F.2d 485 (1932)

PICKWICK-GREYHOUND LINES, Inc., v. SHATTUCK.

No. 617.

Circuit Court of Appeals, Tenth Circuit.

October 21, 1932.

Douglas Hudson, of Ft. Scott, Kan. (M. J. Healy, of Topeka, Kan., on the brief), for petitioner.

John A. Hall, of Pleasanton, Kan., for respondent.

Before LEWIS, PHILLIPS, and McDERMOTT, Circuit Judges.

LEWIS, Circuit Judge.

This is an original proceeding for writ of certiorari. We permitted the petition for the writ to be filed, and from it and the exhibits attached thereto we find these material facts: Willietta Shattuck obtained judgment in the United States District Court for the District of Kansas on May 14, 1930, against Pickwick Stages Corporation for $5000.00. The judgment remaining unpaid she instituted suit in the state district court of Kansas on August 25, 1931, against Pickwick-Greyhound Lines, Incorporated, M. J. Healy, and others to recover damages of them — $5000.00 actual and $5000.00 punitive — because of an alleged conspiracy between said defendants to defeat the collection of her said $5000.00 judgment. Pickwick-Greyhound Lines, Incorporated, filed its petition to remove the cause to the proper United States District Court on the ground of a separable controversy, which was sustained. After removal to the federal court, Mrs. Shattuck, the plaintiff, moved that the case be remanded to the state court. There are two District Judges in the District of Kansas. One of them on November 2, 1931, entered an order overruling said motion to remand. Later, the other judge entered an order sustaining the motion to remand. It is this latter order that the application for the writ seeks to challenge and have reversed or cancelled.

Where the question presented is not one of jurisdiction it is improper for a judge to vacate or overrule a prior order or decision made in the case by another judge of equal rank. Such practice has been uniformly condemned, and the reasons for its condemnation are sufficiently set forth in Commercial Union of America v. Anglo-South American Bank (C. C. A.) 10 F.(2d) 937, and Hardy v. North Butte Mining Co. (C. C. A.) 22 F.(2d) 62; and Plattner Imp. Co. v. International Harv. Co. (C. C. A.) 133 F. 376. But in those cases the subject was considered — in two on error and in the other on appeal.

When the writ was applied for here the case had gone back to the state court. That court had again assumed jurisdiction and was proceeding with the cause; and properly so, we think, under the removal statute. Certainly this court cannot oust that court of its jurisdiction and restore the jurisdiction of the United States District Court over the cause and the parties even if we went to the extent of ordering the District Judge to cancel the remanding order. Nor do we know of any power, if that were done, enabling the District Court to regain jurisdiction. But the removal statute (section 71 of title 28, U. S. Code 28 USCA § 71) contains this:

"Whenever any cause shall be removed from any State court into any district court of the United States, and the district court shall decide that the cause was improperly removed, and order the same to be remanded to the State court from whence it came, such remand shall be immediately carried into execution, and no appeal or writ of error from the decision of the district court so remanding such cause shall be allowed."

The Supreme Court in several cases has held that this statute prohibits review by writ of mandamus of an order of the District Court remanding a case to the state court. In Ex parte Matthew Addy S. S. & Commerce Corp., 256 U. S. 417, 41 S. Ct. 508, 65 L. Ed. 1027, petition was presented to that court for the writ directing the District Judge to vacate his order remanding the case, to redocket it in the District Court, and that it thereupon be heard and determined according to law. Like prior cases are there reviewed, and from one of them this ruling is re-announced:

"The abrogation of the writ of error and appeal would have had little effect in putting an end to the question of removal, if the writ of mandamus could still have been sued out in this court. It is true that the general supervisory power of this court over inferior jurisdictions is of great moment in a public point of view, and should not, upon light grounds, be deemed to be taken away in any case. Still, although the writ of mandamus is not mentioned in the section, yet the use of the words `such remand shall be immediately carried into execution,' in addition to the prohibition of appeal and writ of error, is strongly indicative of an intent to suppress further prolongation of the controversy by whatever process. We are, therefore, of opinion that the act has the effect of taking away the remedy by mandamus as well as that of appeal and writ of error."

In Wabash R. Co. v. Woodrough, 29 F. (2d) 832, the Eighth Circuit Court of Appeals held it was without jurisdiction to review by mandamus a remanding order.

The statute (section 377, title 28, U. S. Code 28 USCA § 377), providing for the use of extraordinary writs, says they may be issued when "necessary for the exercise of their respective jurisdictions"; and it is said to be an established rule now that the writ will issue to protect jurisdiction of this court that has already attached and also its potential jurisdiction. But this is a statutory court and the question presented is answered by statute. Section 80 of...