Pierce's Adm'r v. Illinois Cent. R. Co.

• Decision Date: 28 April 1905
• Citation: 86 S.W. 703
• Parties: PIERCE'S ADM'R v. ILLINOIS CENT. R. CO. et al.
• Court: Kentucky Court of Appeals

86 S.W. 703

PIERCE'S ADM'R v. ILLINOIS CENT. R. CO. et al.

Court of Appeals of Kentucky.

April 28, 1905

Appeal from Circuit Court, McCracken County.

"Not to be officially reported."

Action by Judson Pierce's administrator against the Illinois Central Railroad Company and others. From a judgment of dismissal, plaintiff appeals. Reversed.

Hendrick & Miller, for appellant.

Wheeler Hughes & Berry, J. M. Dickison, and Trabue, Doolan & Cox, for appellee.

HOBSON C.J.

Appellant instituted this suit on March 30, 1899, in the McCracken circuit court, against the Illinois Central Railroad Company W. C. Waggoner, and W. Lyle, to recover for the death of his intestate, which he alleged was caused by the concurrent negligence of the three defendants. Summons having been issued upon the petition and served upon all of the defendants, the railroad company appeared on April 24, 1899 and filed its petition for the removal of the case to the Circuit Court of the United States, alleging that the other two defendants were united as codefendants "for the purpose, and solely for the purpose, of preventing your petitioner from exercising the right guarantied to it by the Constitution and laws of the United States, of removing this suit to the Circuit Court of the United States for the District of Kentucky." There was no allegation of fraud or misjoinder, and no other statement about the joinder of the other two defendants, except that there had been a previous suit filed against the railroad company, which had been dismissed without prejudice after it was removed to the United States Circuit Court. The court made the following order: "This day came the defendant, Illinois Central Railroad Company, by Quigley & Quigley, attorneys, and filed in this action its petition and bond for removal of this cause to the Circuit Court of the United States for the District of Kentucky, and the said bond and surety thereon are approved and accepted by the court, and entered motion and moved the court to transfer this action to the said Circuit Court of the United States for the District of Kentucky." On the next day the following order was entered: "This day came plaintiff, and offered to file answer to the petition of defendant for the removal of this action to the United States Circuit Court for the District of Kentucky, to which the defendant objected; and the court being advised, overruled said objection, and ordered said answer to be filed, to which the defendant excepted." The answer which was thus filed merely alleged that Waggoner and Lyle were residents of Kentucky, which was immaterial, as this was by necessary implication conceded in the petition. No further steps were taken in the action and no order was made by the court until March 2, 1901, when this order was made: "This day the motion to redocket this action as to all the defendants came on to be heard, and the defendant the Illinois Central Railroad Company appeared by attorney and entered its objection; and the court, after hearing the argument of counsel for and against said motion, ordered and adjudged that said case be redocketed as to all the defendants." The defendants then filed answer; the railroad company pleading, among other things, that after the order of April 24, 1899, had been entered, it took a copy of the record and filed the same in the United States Circuit Court for the District of Kentucky, and the plaintiff appeared in that court and entered a motion to remand the case to the state court, which motion was overruled; that thereupon issue was joined, and on April 3, 1900, a jury was impaneled, who found for it, and thereupon the court entered a judgment dismissing the plaintiff's petition, from which no appeal had been taken, and which was in full force and effect. The plaintiff filed a reply alleging that the circuit court of the United States had no jurisdiction of the action, that the case was not removed to that court, and that it was not removable under the statute. The court sustained a demurrer to the reply, and, the plaintiff failing to plead further, dismissed the action.

The ruling of the circuit court was evidently based upon the idea that as the plaintiff had appeared in the ...