The Rathbone Oil Tract Co. v. Rauch

• Decision Date: 31 July 1871
• Citation: 5 W.Va. 79
• Court: West Virginia Supreme Court
• Parties: The Rathbone Oil Tract Co. v. Charles M. Rauch.

5 W.Va. 79

The Rathbone Oil Tract Co.

v.Charles M. Rauch.

Supreme Court of Appeals of West Virginia.

July Term, 1871.

1. The action of unlawful detainer involves the title and boundary of land, within

the meaning of the 8th section of article VI. of the constitution; and this court has jurisdiction over a final judgment of the circuit court In such action, although the case may have been brought into the circuit court by appeal from a justice's judgment. Code, chap. 135, p, 639.

2. An affidavit in a cause, filed for the purpose of obtaining a removal of it to a federal court, is within the meaning of the act of Congress providing that where a suit is pending in a State court between a " citizen " of that State and a " citizen " of another State, if it be made on behalf of a " corporation " created by another State, in its corporate name; as the legal presumption is that its members are citizens of the State in which alone the corporate body has a legal existence, and that a suit by or against a corporation in its corporate name, must be presumed to be a suit by or against citizens of the State which created the corporate body.

3. An action of unlawful detainer is brought before a justice, and judgment being rendered against the defendant, a foreign corporation, it appeals to the circuit court, but before trial it seeks to remove the cause to the circuit court of the United States, under the act of Congress. Held:

I. That the trial before the justice was not a " final trial" within the meaning of the act. That no motion to remove the cause could have been made before the justice, because that is not a " State court," in the meaning of the act of Congress.

II. That a case on appeal from a justice's judgment is to be tried de novo in the circuit court, and as though it had never been tried, therefore, according to the meaning and intent of the act of Congress, no final trial had taken place at the time of the motion for removal, and it was error to overrule it.

This was a suit brought by Charles M. Rauch, against the Rathbone Oil Tract Company on the 9th of January, 1868, in Burning Springs township, Wirt county, before a justice. The summons claimed damages for " unlawfully detaining," &c.j a certain lot of land, the damage being limited to ninetynine dollars. Judgment for the plaintiff, January 14th, 1868. The defendant appealed to the circuit court of Wirt county.

At the November term, 1870, the defendant filed an affidavit under the act of Congress, and tendered security for the costs, and moved the court to remove the cause to the circuit court of the United States for the district of West Virginia. The court overruled the motion, and at the same term a trial was had, and judgment for the plaintiff.

The affidavit asking a removal, stated that the defendant was a corporation formed under the laws of the State of New York, and its principal office and place of business was in the city and State of New York; that the plaintiff was a resident of the State of West Virginia; that the matter in dispute exceeded the sum of five hundred dollars, and that by reason of local influence and prejudice, the defendant could not obtain justice, &c.

The plaintiff brought the case here for review.

Jackson and Hutchinson for plaintiff in error. for defendant in error.

Maxwell, J. Ranch brought his complaint against the defendant before a justice in Wirt county, for unlawfully detaining from him the possession of a certain tract of land, described in the complaint. A trial was had before the justice, and judgment rendered for the plaintiff, when the defendant appealed to the circuit court, where the cause was tried, and judgment again rendered for the plaintiff, from which last judgment the defendant has appealed to this court.

The first question for consideration is, the motion made by the appellee to dismiss the appeal, upon the ground that this court has no jurisdiction to hear or determine the same. To maintain the jurisdiction of this court, it is not necessary to look any further than to the first section of chapter 135 of the Code, p. 639, which provides that a party to a controversy in any circuit court may appeal to the supreme court of appeals from a judgment, decree, or order therein, in the following cases: First, from a final judgment or decree concerning the title or boundary of land. When the case was taken to the circuit court on appeal, it was a case pending in that court, and the appeal to this court is by a party to a controversy in that court. The Code does not recognize any difference be- tween a suit originally brought in a circuit court and a case which gets there upon appeal. The only test is, that the party who appeals must be a party to the controversy. The appeal is from a final judgment rendered in the controversy. Was the controversy " concerning the title or boundary of land."

This court held, in the case of Gorman vs. Steed, 1 W. Va. Rep., p. 1, that an action of unlawful detainer involves the title and boundary of land, within the meaning of the 8th section of Art. VI. of the constitution, which section contains the precise language of the code, quoted above. The motion to dismiss for want of jurisdiction will therefore have to be overruled. Before the case was tried in the circuit court, a motion was made by the defendant, to remove it for trial into the circuit court of the United States for the district of West Virginia, which motion was overruled. The motion for removal was made under the act of Congress approved March 2d, 1867, entitled, "An act to amend an act entitled an act for the removal of causes in certain cases from State courts, approved July twenty-seven, eighteen hundred and sixtysix." This act provides: "That where a suit is now pending, it may hereafter be brought in any State court in which there is a controversy between a citizen of the State in which the suit is brought, and a citizen of another State, and the...