Scarmardo v. Mooring, Civ. A. No. 5429.
| Decision Date | 13 March 1950 |
| Docket Number | Civ. A. No. 5429. |
| Parties | SCARMARDO v. MOORING et al. |
| Court | U.S. District Court — Southern District of Texas |
Hays Bowers and J. Alton York, of Caldwell, Texas, for plaintiff.
Cocke & Lawrence (Richard H. Cocke), of Bryan, Texas, for defendants.
On December 28, 1949, Plaintiff, Sam C. Scarmardo, a citizen of Texas, filed a civil action in a State Court (District Court of Burleson County, Texas) against Defendants, Ward Mooring, a citizen of Texas, and Delta Airlines, Inc., a corporation having its domicile in Louisiana, for damages, in an amount in excess of $3000, to Plaintiff's land and certain crops thereon situated in Burleson County, Texas.
On January 30, 1950, Defendant Delta Airlines, Inc. filed in this Court its Petition and Bond to remove such case into this Court. On February 14, 1950, Plaintiff moved to remand the case to the District Court of Burleson County, on the ground that Burleson County is not in this District or Division, but in the Western District of Texas, Austin Division.
Defendants concede that Burleson County is not in this District and Division and that their Petition for Removal was improperly filed in this Court and that it should have been filed in the United States District Court for the Austin Division of the Western District of Texas. But they insist that this Court should not remand the case, but should transfer it to such United States District Court for the Western District of Texas.
The procedure for removal is prescribed by Section 1446 of such Title 28.1
It is perfectly plain that under Section 1441 the case, if removable at all,2 may be removed only to the United States District Court for the Western District of Texas. The Defendant Delta Airlines, Inc. accomplished nothing by filing its Petition for Removal, etc., in this Court. This Court has not thereby acquired Jurisdiction, and the District Court of Burleson County, Texas, has not thereby lost, but still has, Jurisdiction of the case.
2: — Since this Court has not acquired Jurisdiction of the case it may not, as Defendants contend, transfer it to the United States District Court for the Western District of Texas. Section 1404(a),3 upon which Defendants stand on their Motion to Transfer, relates to venue and not to jurisdiction. It is not applicable here. This Court being without jurisdiction has no power to so transfer the case. It cannot confer jurisdiction upon the Court of the Western District by transferring the case there.
The Motion to Remand is granted. Let suitable Order be drawn and presented.
To continue reading
Request your trial
-
Goldlawr, Inc. v. Heiman
...v. Drotman, D.C.W.D.Ky.1952, 103 F.Supp. 643; Wilson v. Kansas City So. Ry., D.C.W.D.Mo. 1951, 101 F.Supp. 56; cf. Scarmardo v. Mooring, D.C.S.D.Tex.1950, 89 F.Supp. 936; see U.Cinn.L.Rev. 357 Goldlawr expresses the fear that if the district court here is upheld that section 1406(a) will ne......
-
Mortensen v. Wheel Horse Products, Inc.
...for a transfer to the correct district court under § 1631. After noting that the sole reported case on this issue, Scarmardo v. Mooring, 89 F.Supp. 936 (S.D.Tex.1950), supported the plaintiffs' motion to remand under § 1447(c), the court turned to the newly enacted § 1631. Plaintiffs argued......
-
Kreimerman v. Casa Veerkamp, S.A. de C.V.
...v. Demco, Inc., 792 F.2d 478, 482 (5th Cir.1986); Butler v. Polk, 592 F.2d 1293, 1296 (5th Cir.1979).62 See, e.g., Scarmardo v. Mooring, 89 F.Supp. 936, 937 (S.D.Tex.1950).63 Cook v. Shell Chemical Co., 730 F.Supp. 1381, 1382 (M.D.La.1990).64 Id.; accord Mortensen v. Wheel Horse Prods., Inc......
-
Petroleum Financial Corp. v. Stone
...it lacked power to transfer the case to the federal district court to which the action should have been removed. Scarmardo v. Mooring, D.C.S.D.Tex., 89 F.Supp. 936. The only authority I find indicating a different conclusion is Schiller v. MitClip Co., 2 Cir., 180 F.2d 654. There, where pla......