Postal Telegraph Cable Co. v. Southern Ry. Co.

• Decision Date: 20 July 1898
• Citation: 88 F. 803
• Parties: POSTAL TEL. CABLE CO. v. SOUTHERN RY. CO. SOUTHERN RY. CO. v. POSTAL TEL. CABLE CO.
• Court: U.S. Court of Appeals — Fourth Circuit

88 F. 803

POSTAL TEL. CABLE CO. v. SOUTHERN RY. CO.

SOUTHERN RY. CO. v. POSTAL TEL. CABLE CO.

United States Circuit Court, W.D. North Carolina.

July 20, 1898

A. L Brooks and J. R. McIntosh, for plaintiff.

Stiles & Holladay and F. H. Busbee, for defendant.

SIMONTON Circuit Judge.

These two cases came up together under these circumstances: The Postal Telegraph Cable Company entered proceedings in the superior court of Guilford county, in the state of North Carolina, seeking to condemn the right to erect its poles and stretch its wires over and along the right of way of the Southern Railway in North Carolina. The petition, among other things, alleged the intention of the Postal Telegraph Cable Company to erect its poles and stretch its wires very near the outer limits of the right of way of the railway company so as in no wise to interfere with its use of its track, and if, in any case, it should hereafter appear that any of the said poles were obstructing such use, that the telegraph company would remove them at its own expense, on reasonable notice. Upon the institution of these proceedings the Southern Railway Company filed its petition for removal of the case into this court, relying upon two distinctly stated facts,-- the diversity of citizenship between it and the telegraph company, and that the matter in dispute exceeded $2,000, besides interest and costs. The petition was accompanied by a bond with surety. Application having been made to the state court immediately upon the filing the petition and bond, an order of removal was refused upon the ground solely that the matter in dispute was not of a value exceeding $2,000. The next day after this refusal the Southern Railway filed a transcript of the record in this court. On the same day the Postal Telegraph Cable Company moved before the state court for leave to amend its proceedings for the purpose of making new parties. This motion was refused because made in the absence of, and without notice to, the defendant's attorney. Because of this, and the fear of other motions, the Southern Railway Company filed its bill, setting forth the facts stated above and praying that the Postal Telegraph Cable Company be enjoined from seeking to proceed any farther in the state court, inasmuch as the cause had been removed into this court. This is the second cause mentioned in the title above set forth. It comes up on the return to the rule issued on filing the bill requiring cause to be shown why an injunction should not issue as prayed for. The return, after disclaiming all knowledge that the cause had been removed into this court, and disavowing all want of respect thereof, rests upon the position that this court cannot entertain the case, as the value of the matter in dispute is less than $2,000. As precisely the same question is made in the removal case, and as the two cases are closely connected with each other, it was determined to hear argument, with the understanding that the conclusion reached would dispose of both cases.

The controlling question in this matter, then, is, is the proceeding in the superior court of Guilford county a proper case for removal into this court? It is not questioned that that proceeding is a suit. Nor can there be any doubt on this point. Kohl v. U.S., 91 U.S. 367; Searl v. School Dist., 124 U.S. 199, 8 Sup.Ct. 460; Martin's Adm'r v. Railroad Co., 151 U.S. 673, 14 Sup.Ct. 533. It is a suit between citizens of different states; the Postal Telegraph Cable Company being a corporation of the state of New York, and the Southern Railway Company being a corporation of the state of Virginia.

The petition for removal, with proper bond, was filed before the time for answering had expired. This petition averred the two jurisdictional facts: (1) The diversity of citizenship; (2) that the matter in controversy exceeded the value of $2,000 exclusive of interest and costs. Upon the truth of these facts, of both of them, depends the right of removal. Powers v. Railway Co., 169 U.S. 99, 18 Sup.Ct. 264. Issue was joined upon one of these facts,--the jurisdictional amount; and the superior court, inadvertently it is sure, passed upon that issue. It could be decided nowhere but in this court. Carson v. Hyatt, 118 U.S. 279, 6 Sup.Ct. 1050; Carson v. Dunham, 121 U.S. 421, 7 Sup.Ct. 1030; Railway Co. v. Dunn, 122 U.S. 513, 7 Sup.Ct. 1262; Railroad Co. v. Daughtry, 138 U.S. 298, 11 Sup.Ct. 306. This being the case, and the petition on its face stating the two essential facts for removal, the case...