Roberts v. Chicago, St. P., M. & O. Ry. Co.

• Decision Date: 08 March 1892
• Citation: 48 Minn. 521
• Parties: JOHN ROBERTS <I>vs.</I> CHICAGO, ST. PAUL, MINNEAPOLIS & OMAHA RY. CO.
• Court: Minnesota Supreme Court

48 Minn. 521

JOHN ROBERTSvs.

CHICAGO, ST. PAUL, MINNEAPOLIS & OMAHA RY. CO.

Supreme Court of Minnesota.

Argued January 5, 1892.

Decided March 8, 1892.

Appeal by defendant, the Chicago, St. Paul, Minneapolis & Omaha Railway Company, from a judgment of the district court of Scott county, entered upon default, December 5, 1890, in favor of plaintiff, John Roberts.

Appeal also by defendant from an order made in the same action by Hicks, J., April 15, 1891, discharging an order to show cause why said judgment should not be vacated.

The plaintiff, John Roberts, was employed by defendant as fireman on an engine hauling freight trains between St. Paul and St. James, Minn. On March 7, 1890, at St. James, while on a side track, he was caught between the water tank at that place and the tender attached to the engine, and seriously injured. He began this action October 15, 1890, to recover damages, and the summons and complaint were served that day on defendant by delivery to its station agent at Shakopee, Minn. The original summons and complaint, and proof of service, were filed on November 5, 1890, in the office of the clerk of the district court in Scott county.

On November 1, 1890, the defendant, claiming to be a Wisconsin corporation, filed with the clerk of the district court its petition for the removal of the action into the circuit court of the United States for the district of Minnesota, third division. The petition was accompanied by a proper removal bond. The clerk, at its request, made a certified transcript of the papers on file, and defendant filed this copy in the federal court, together with its answer in the action.

On November 7, 1890, plaintiff's attorney presented an affidavit that no appearance had been made or answer served by the defendant, and applied to the judge of the state court for judgment. He ordered that the action be referred to John L. Townley, Esq., as sole referee to hear and report and order judgment, and further ordered that, upon filing his report, judgment be entered by the clerk in accordance therewith. The referee heard plaintiff's evidence, and on December 4, 1890, made his report, stating his findings of fact and conclusions of law, and ordering judgment for plaintiff, and assessing his damages at $21,905. Judgment was entered the next day on this report.

On December 30, 1890, defendant presented to Hon. Henry G. Hicks, one of the judges of the state district court, an affidavit stating the removal of the action into the federal court, and the subsequent entry of judgment in the state court, and procured from said judge an order that plaintiff show cause before that court why the judgment should not be vacated, on the ground that the state court had lost jurisdiction by the removal. Cause was shown by plaintiff, and the matter submitted on January 17, 1891, and taken under advisement.

On March 3, 1891, plaintiff appeared in the United States circuit court, and moved to strike the case from its calendar, and remand the suit to the state court. After hearing the parties, an order was on that day entered in that court, remanding the suit, on the ground that the petition and bond for removal had not been presented to the state court for its action; that filing them with the clerk was not such presentation. 45 Fed. Rep. 433.

On April 13, 1891, the state district court, Hicks, J., made an order in the motion pending in that court, discharging the order to show cause, and denying the motion to vacate the judgment.

These appeals are from that order, and from the judgment entered by default on the referee's report.

J. H. Howe and S. L. Perrin, for appellant.

COPYRIGHT MATERIAL OMITTED

J. L. McDonald, for respondent.

DICKINSON, J.

This action to recover damages for a personal injury caused by the alleged negligence of the defendant was commenced in the district court of this state. Before the time for answering the complaint had expired, the defendant filed in the office of the clerk of that court, in the proper county, a petition and bond for a removal of the cause to the circuit court of the United States; it being alleged in such petition that the defendant was a foreign (Wisconsin) corporation, and the plaintiff a citizen of this state. No question is here presented as to the petition and bond being sufficient in form for the purposes of effecting a removal of the cause pursuant to the provisions of the law of congress of March 3, 1875, ch. 137, as amended by the act of August 13, 1888, ch. 866, if the proper practice was pursued. The clerk of the district court filed the petition and bond on the 1st day of November, and at the request of the defendant made a certified copy of the record of the cause in the district court, which was filed in the office of the clerk of the circuit court on the 3d day of November; and the defendant then filed in the latter court its answer to the complaint. The time for answering expired on the following day. The petition and bond for removal were not presented to the judge of the state court, nor is it shown that his attention was called to the fact that they had been filed in the clerk's office. It appears that no notice of such filing was served upon the plaintiff. On the 7th day of November, upon affidavit presented to the state court on the part of the plaintiff, alleging the default of the defendant to appear in the action, or to demur to or answer the complaint, that court proceeded in the cause as upon default. An order of reference was made, the cause was heard before the referee upon evidence presented on the part of the plaintiff, and upon the report of the referee judgment was entered against the defendant for the recovery of about $22,000. A motion addressed to the district court to set aside the judgment was refused. The defendant appealed both from the order refusing to set aside the judgment and also from the judgment. Both appeals present the same questions, were argued together, and what we shall say will be equally applicable to both appeals, unless otherwise indicated.

The real question to be decided is whether, by the proceedings to which we have referred, the jurisdiction of the state court was suspended or terminated; or, in other words, whether such proceedings were effectual to remove the cause from the state to the federal court. If such was the case, then the judgment was void for want of jurisdiction, and should have been set aside on motion, and the appellant should prevail in both appeals. The respondent cannot be sustained in his contention that by the motion to vacate the defendant submitted to the jurisdiction of the court, and so made valid the judgment, even though it was rendered without jurisdiction. Godfrey v. Valentine, 39 Minn. 336, (40 N. W. Rep. 163.) Nor can it affect the validity of the judgment that the case was subsequently remanded to the state court, it being considered by the circuit court that the attempted removal had not been effectual. Of course, that decision of the circuit court is to be regarded as authority upon the question whether the proceedings for removal were effectual; but the remanding of the cause had no retroactive effect, as respects the jurisdiction of the state court prior thereto. The briefs contain extended arguments upon the question whether this defendant stood before our courts as a foreign or a domestic corporation, a nonresident or a resident of this state, upon which fact its right to remove the cause to the circuit court depended. The district court was not required to pass upon that question. It had no power to do so, and it is not a matter involved in these appeals. The petition for removal stated the fact to be that the defendant was a foreign corporation, and nonresident of this state. No question is suggested as to the petition showing on its face, if the facts alleged were true, that the defendant was entitled to have the cause transferred to the federal court, but the plaintiff, in effect, disputes the facts alleged in the petition. It has been settled by the decisions of the supreme court of the United States that, where the petition, considered in connection with the record of the cause, shows facts entitling the petitioner to a removal, (the law being complied with in other respects,) the cause is effectually removed, and any controversy which may arise upon the facts alleged by the petition must be determined in the federal court. Burlington, C. R. & N. Ry. Co. v. Dunn, 122 U. S. 513, (7 Sup. Ct. Rep. 1262,) and cases cited. The stipulation for the entry of a judgment in the circuit remanding the cause in accordance with the decision of that court does not affect the question here presented.

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