St. Anthony Falls W.-P. Co. v. King Bridge Co.

• Decision Date: 25 October 1876
• Parties: ST. ANTHONY FALLS WATER-POWER COMPANY <I>vs.</I> KING WROUGHT-IRON BRIDGE COMPANY.
• Court: Minnesota Supreme Court

23 Minn. 186

ST. ANTHONY FALLS WATER-POWER COMPANYvs.

KING WROUGHT-IRON BRIDGE COMPANY.

Supreme Court of Minnesota.

October 25, 1876.

Action against the defendant, a Kansas corporation, to recover the agreed price of 5,035.30 perch of stone, taken by the defendant from plaintiff's land, under the circumstances stated in the opinion. The cause, being at issue, was called for trial at a general term of the district court for Hennepin county, Vanderburgh, J., presiding, on December 17, 1874, and a jury was called to try it. Thereupon the defendant — which had previously filed its verified petition under U. S. Rev. St. § 639, praying for the removal of the action to the United States circuit court for Minnesota — presented such petition to the court, together with a bond in due form, and asked for an order of transfer to the federal court. The plaintiff's counsel objecting that the application came too late, as the trial had already begun, the application was denied — the defendant excepting — and the action was tried, and a verdict rendered for plaintiff for the amount claimed in the complaint. The defendant appeals from the order refusing the transfer to the federal court, and from an order refusing a new trial.

Atwater & Babcock, for appellant.

Lochren, McNair & Gilfillan, for respondent.

GILFILLAN, C. J.

The order of the court below, refusing to transfer the cause to the United States circuit court, does not come within any of the subdivisions of Gen. St. c. 86, § 8, and is not appealable. The appeal from it is, therefore, dismissed.

Where a party to a suit complies in proper time with the requirements of the law of congress regulating removals from state to the federal courts, the state court at once loses jurisdiction of the cause. No order of the state court is necessary. Should the state court proceed to trial and judgment after that has been done, its judgment will be reversed for that reason. The application for removal must be made, and the law of congress be fully complied with, by the party, before trial. This means before the trial has begun. When a cause has been called for trial in its order, and a jury has been called to try the cause, the trial has been begun, even though the jury has not been sworn. The calling of the jury is a part of the trial. In this case, when the trial commenced, the defendant had not complied with the law of congress. It had filed its petition and affidavit, but had not offered its surety, within the meaning of the law. The security required must be actually produced and presented for the approval of the court.

The complaint alleges, among other things, the corporate existence of defendant. The answer denies each and every allegation in said complaint contained, and each and every part and portion thereof, not thereinafter expressly admitted, qualified, or denied. It then goes on to allege, among other things, acts of defendant, without alleging that they were done in any other capacity than that charged in the complaint, to wit, as a corporation. Applying, by analogy, the rule as to a plea alleging a misnomer — that the party alleging it must give the true name — we think that, if defendant intended to rely upon a denial of its corporate character, it should have alleged in what character it performed the acts pleaded. The pleading of such acts, without showing that they were done otherwise than as a corporation, qualifies the general denial, and leaves the allegation in the complaint, of defendant's corporation, admitted.

This brings us to the merits of the case. In the fall of 1872, the city of Minneapolis then having in contemplation the construction of two bridges across the Mississippi river within its limits, the board of directors of the plaintiff passed this resolution: "Resolved, that, for the purpose of facilitating the construction of the two bridges across the Mississippi river provided for in the union charter, and to connect the same with the streets in the East Division, the Saint Anthony Falls Water-power Company will donate to the city the right of way, eighty feet wide, through any of its land between Main street and the...