Stone v. Sargent

• Decision Date: 07 October 1880
• Citation: 129 Mass. 503
• Parties: Isaac Stone v. George H. Sargent
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

129 Mass. 503

Isaac Stone v. George H. Sargent

Supreme Court of Massachusetts

October 7, 1880

Hampshire. Contract to recover $ 25,000 under a special agreement. Writ dated August 17, 1877, and returnable at October term 1877 of the Superior Court. At June term 1878 the defendant having filed his answer, the case was referred by agreement of parties and rule of court to an auditor. A hearing was had before the auditor, and his report was made and returned to the court, and was among the papers in the case, but no note of its having been filed appeared in the report or on the docket. At June term 1879 the case was upon the trial list.

At October term 1879, and before any trial by the court or the jury, the defendant filed a petition for the removal of the case into the Circuit Court of the United States, alleging that he was a citizen of New York and the plaintiff a citizen of this Commonwealth, and that the amount in dispute exclusive of costs, exceeded the sum and value of $ 500; and supported by his affidavit that he had reason to believe and did believe that from prejudice and undue influence he should not be able to obtain justice in the Superior Court. To that petition the plaintiff filed an answer, admitting the citizenship of the parties and the amount in dispute, but alleging that any right which the defendant might have had to remove the case into the Circuit Court had been waived: 1st. By omitting to file his petition before or at the term at which the case might have been tried; 2d. By consenting that the case should be referred to the auditor, and by the proceedings before him.

At the same term of the Superior Court, before Brigham, C. J., the plaintiff offered evidence that the auditor read his report to the attorneys of the parties on the Saturday before June term 1879, and that it was then expressly understood and agreed that neither party should object that the auditor's report was not on file before the first day of that term. But the judge excluded the evidence as immaterial on the question of removal, and ordered the case to be removed as prayed for. To this ruling and order exceptions were alleged by the plaintiff, and allowed by the judge.

The defendant now moved this court to dismiss the bill of exceptions for want of jurisdiction, because, as appeared by copies which he produced, attested by the clerk of the Circuit Court, the case had been entered in that court, and the plaintiff had there appeared and filed a motion to remand the case to the State court for the same reasons stated in his answer to the petition for removal.

Exceptions overruled.

C. Delano, for the defendant, in support of the motion, cited Dillon on Removal of Causes (2d. ed.) 67, 79 and notes; Insurance Co. v. Dunn, 19 Wall. 214, 225; Matthews v. Lyall, 6 McLean 13; Taylor v. Rockefeller, 6 W. N. C. (Penn.) 283; Dennistoun v. Draper, 5 Blatchf. C. C. 336, 338; Hatch v. Chicago, Rock Island & Pacific Railroad, 6 Blatchf. C. C. 105; Fisk v. Union Pacific Railroad, 6 Blatchf. C. C. 362, and 8 Blatchf. C. C. 243, 249; Wormser v. Dahlman, 16 Blatchf. C. C. 319; Fulton v. Golden, 8 Reporter 517; Penrose v. Penrose, 9 Reporter 586, 809; Arthur v. New England Ins. Co. 7 Reporter 329; Kelly v. Virginia Ins. Co. 3 Hughes 449; Cobb v. Globe Ins. Co. 3 Hughes 452; Dennis v. Alachua County, 3 Woods 683; Osgood v. Chicago, Danville & Vincennes Railroad, 6 Biss. 330; Empire Transportation Co. v. Richards, 88 Ill. 404; Beery v. Chicago, Rock Island & Pacific Railroad, 64 Misso. 533; Stewart v. Mordecai, 40 Ga. 1; Tarver v. Ficklin, 60 Ga. 373.

The Court, without calling on D. W. Bond, for the plaintiff, in opposition to the motion, directed the exceptions to be argued; and they were argued by the same counsel; Delano being heard only upon the question whether the act of Congress of March 2, 1867, reenacted in the U. S. Rev. Sts. § 639, cl. 3, had been repealed, so far as applicable to this case, by the act of Congress of March 3, 1875.

Gray, C. J. Colt & Morton, JJ., absent.

OPINION

Gray, C. J.

Among the provisions of former acts of Congress, concerning the removal of causes from the State courts to the Federal courts, which are substantially reenacted in the Revised Statutes of the United States, are those of the act of March 2, 1867, by which any suit commenced in any court of a State between a citizen of that State and a citizen of another State, in which the amount in dispute, exclusive of costs, exceeds the sum or value of five hundred dollars, may be removed for trial into the Circuit Court of the United States next to be holden for the district in which the suit is pending, upon the petition of the citizen of the other State, whether he be plaintiff or defendant, filed "at any time before the trial or final hearing of the suit," and supported by his affidavit that he has reason to believe and does believe that from prejudice or local influence he will not be able to obtain justice in the State court, and upon his offering good and sufficient surety for his entering in the Circuit Court, on the first day of its session, copies of the process against him, and of all pleadings and proceedings in the cause, and for his appearance there. The act provides that "it shall thereupon be the duty of the State court to accept the surety, and to proceed no further in the cause against the petitioner;" and that, "when the said copies are entered as aforesaid in the Circuit Court, the cause shall there proceed in the same manner as if it had been brought there by original process," and the copies of pleadings shall have the same force and effect as the originals. U.S. Rev. Sts. § 639, cl. 3.

As appears by the authorities cited by the learned counsel for the defendant, if the case is within the act of Congress, and the proper petition, affidavit and surety are filed in the State court, the Circuit Court of the United States takes jurisdiction of the cause, although the State court omits, or even refuses, to make any order for its removal. In other words, the jurisdiction of the Federal court over a case in which the conditions of the act of Congress have been complied with cannot be defeated by any action or omission of the State court.

On the other hand, it is the duty of the State court, before relinquishing jurisdiction of a cause once lawfully brought before it, and discharging that cause from its own docket, to be satisfied that there has been a compliance with those conditions. If the highest court of the State errs in holding that the petitioner is not entitled to remove the cause, its judgment may be revised and reversed on writ of error by the Supreme Court of the United States, and all proceedings had in the courts of the State after due application for a removal may be ordered by that court to be set aside. But no act of Congress, and no adjudication of the Supreme Court of the United States, has made the opinion of the State court, upon the question whether its own jurisdiction must be surrendered, subordinate to the opinion of any Federal tribunal below the Supreme Court.

It is, to say the least, a matter of grave doubt whether the Circuit Court of the United States, in such a case as this, could issue a writ of mandamus or of certiorari to the State court; and if it could, it would only be when no copy of the record had been filed in the Circuit Court, and to obtain such a copy for the purpose of guiding its own proceedings, and not to restrain or control the judicial action of the State court. Ex parte Turner, 3 Wall. Jr. 258. Murray v. Patrie, 5 Blatchf. C. C. 343; S. C. cited 6 Blatchf. C. C. 382-386; S. C. nom. Justices v. Murray, 9 Wall. 274, 276 note. Hough v. Western Transportation Co. 1 Biss. 425. In re Cromie, 2 Biss. 160. Osgood v. Chicago, Danville & Vincennes Railroad, 6 Biss. 330. Scott v. Clinton & Springfield Railroad, 6 Biss. 529. United States v. McKee, 4 Dill. 1.

In Dillon on Removal of Causes (2d ed.) 77-79, it is said that the Circuit Court of the United States has the power to protect its suitors by injunction against a judgment rendered in the State court after a proper application to remove the cause. But the only authority there cited is French v. Hay, 22 Wall. 250, in which the circumstances were very peculiar, and the judgment in no way supports the position of the learned author. In that case, the principal cause had been removed without objection from a State court of Virginia into the Circuit Court of the United States, and the State court of Virginia had not undertaken to retain jurisdiction thereof. The injunction issued by the Federal court was not against proceeding with the original suit in the State court of Virginia, but against prosecuting a new suit, commenced in the courts of another State after the right of removal had been perfected, upon a decree rendered in the State court of Virginia before the application for removal. The judgment is limited by its language, as well as by the facts before the court, to injunctions to stay suits commenced after the jurisdiction of the Federal court has attached; and in any other view would be inconsistent, not only with the clear terms of the acts of Congress, but with earlier and later decisions of the Supreme Court of the United States. U.S. St. March 2, 1793, § 5. U.S. Rev. Sts. § 720. Diggs v. Wolcott, 4 Cranch 179. Watson v. Jones, 13 Wall. 679, 719. Haines v. Carpenter, 91 U.S. 254. Dial v. Reynolds, 96 U.S. 340. See also Bradley, J., in Live Stock Association v. Crescent City Co. 1 Abbott U.S. 388, 404-407; S. C. 1 Woods 21, 34-36.

The inconvenience of the construction for which the defendant contends may be made more apparent by applying it to a case in which the amount in dispute is more than five hundred and less than five...