State v. Hall

• Decision Date: 31 August 1926
• Docket Number: No. 4126.,4126.
• Parties: STATE ex rel. HALL et al. v. KELLEY, Circuit Judge, et al.
• Court: Missouri Court of Appeals

286 S.W. 724

STATE ex rel. HALL et al. v. KELLEY, Circuit Judge, et al.

No. 4126.

Springfield Court of Appeals. Missouri.

August 31, 1926. was still pending therein, preventing issuance of writ of prohibition to prevent state court's trying cause.

Original proceeding by the State, on the relation of Martha Hall and others, minors, by their guardian and curator, Charles H. Kirkpatrick, for prohibition to be directed to Frank Kelley, Judge of the Circuit Court of Mississippi County, and another. Petition denied.

Russell & Joslyn, of Charleston, for relators.

Charles A. Flouts, of St. Louis, for respondents.

COX, P. J. The relator seeks to prohibit

Hon. Frank Kelley, judge of the circuit court of Mississippi county, from entertaining jurisdiction to proceed to try a case of relator against the Chicago National Life Insurance Company. The contention of relator is that a final judgment has already been rendered in the case, hence the circuit court does not have jurisdiction to retry it.

The history of the proceedings in this case are as follows: Suit was filed by relator in the circuit court of Mississippi county, returnable to the February term, 1926, against respondent insurance company. Summons was issued and served, and the case was triable at the term of court. The court convened on February 8, 1926, and in that county the defendant was required to plead on the first day of the term. The defendant did not plead on the 8th of February, the first day of the term, but, on the 10th day of February, the third day of the term, filed a petition and bond for removal of the case to the federal court. On the 11th day of February this petition and bond were conceded to be in due form of law, but the petition was denied because filed out of time. Defendant was then given until February 17th to plead. This was not done, and on February 18th the plaintiff took judgment by default. On February 19th the defendant filed a petition and bond for removal in the federal court, and an order of removal was made by that court on that day, and a transcript thereof filed in the state court on February 20th. Defendant discovered that a default judgment had been entered against it on the 18th, which was one day prior to the date that the order of removal was made by the federal court, and then filed in the state court a motion to set aside the default judgment and filed affidavits in support thereof. This motion was sustained and defendant given until February 26th to Plead. On February 25th the defendant filed an answer and plaintiff filed a reply thereto. The case was set for trial on March 2, 1926. On February 27th the defendant served notice upon counsel for plaintiff that another petition for removal of the case to the federal court had been filed in the federal court, and it had been set for hearing on March 4th. Counsel for plaintiff filed a motion in the federal court to remand the cause to the state court, and this motion was sustained. The judge of the state court was about to proceed to try the case when this writ of prohibition was applied for and a temporary writ issued. The February term of the state court had adjourned before the order remanding the cause was made by the federal court.

The position of relator is that the default judgment in his favor, rendered February 18, 1926, is a final judgment, and that the action of the trial court in setting this judgment aside on February 23, 1926, was void because there was in force at that time an order of the federal court issued on February 19, 1926, by which the cause was removed to the federal court, and the state court had no jurisdiction to make any order in the case. We do not deem it necessary to enter upon a lengthy discussion of the federal statute and the decisions of the United States Supreme Court relative to the removal of causes from a state court to the federal court. The procedure and the passing of jurisdiction from a state to a federal court, as far as we deem it applicable to the facts of this case, may be noted as follows:

In Roberts v. Chicago, St. P., M. & 0. Ry. Co.. 48 Minn. 521, 529, 51 N. W. 478, 479, it is said by the Supreme Court of Minnesota:

"If the petitioner complies with the requirements of the statute, and states in his petition facts which, if true, show, in connection with the record of the case, that he is entitled to a removal, the jurisdiction of the" state court is thereby arrested, even though that court should refuse to recognize the right of removal."``)

To support that statement of the law the following cases are cited: Burlington, C. R. & N. Ry. Co v. Dunn, 122 U. S. 513, 7 S. Ct. 1262, 30 L. Ed. 1159; Stone v. South Carolina 117 U. S. 430, 6 S. Ct. 799, 29 L. Ed. 962; Marshall v. Holmes, 141 U. S. 589, 12 S. Ct. 62, 35 L. Ed. 870; National Steamship Co. v. Tugman, 106 U. S. 118, 1 S. Ct. 58, 27 L. Ed. 87.

It follows that, if the case is one that is removable, the filing of the petition and bond, if good on their face, arrests the jurisdiction of the state court, and what that court does, if anything, thereafter is coram non judice. It is not necessary for the state court to make an order of removal. It merely ceases to act further in the case. If, however, the case is not in fact removable, and a petition for removal filed in the state court shows on its face that it is not removable,...