The State ex rel. Porter v. Falkenhainer

• Decision Date: 27 June 1927
• Docket Number: 27416
• Parties: The State ex rel. Meda Porter, Administratrix of Estate of William S. Porter, v. Victor H. Falkenhainer, Judge of Eighth Judicial Circuit
• Court: Missouri Supreme Court

296 S.W. 386

317 Mo. 707

The State ex rel. Meda Porter, Administratrix of Estate of William S. Porter, v. Victor H. Falkenhainer, Judge of Eighth Judicial Circuit

No. 27416

Supreme Court of Missouri

June 27, 1927

Record quashed.

Charles P. Noell for relator; Glen Mohler, of counsel.

(1) Certiorari will lie to review the action of an inferior court in allowing the removal of a cause from the State court to the Federal court. There is no remedy by appeal, or otherwise save by certiorari. State ex rel. Iba v. Mosman, 231 Mo. 474. (2) The test as to whether the right of removal accrues to a non-resident defendant after the resident defendants are out of the case is whether the discontinuance as to the resident defendants was voluntary on the part of the plaintiff. Where a demurrer to the evidence is sustained as to the resident defendants the dismissal is regarded as involuntary as to plaintiff, and no right of removal arises in favor of the remaining non-resident defendant. Nor is the non-resident in any more favorable position after such a discontinuance by submitting the case to the jury on its merits, and having its motion for new trial sustained after an adverse verdict, the cause being the same and plaintiff at no time having taken a voluntary step of dismissal as to such resident defendants. Craig v. Carmichael Co., 271 Mo. 523; Zumwalt v. Railroad Co., 266 S.W. 726; Kansas City v. Herman, 187 U.S. 63, 47 L.Ed. 76; Lathrop v. Interior Co., 215 U.S. 246, 54 L.Ed. 177; Whitcomb v. Smithson, 175 U.S. 637, 44 L.Ed. 304; American C. & F. Co. v Kettlehake, 236 U.S. 311, 59 L.Ed. 594; Ill. Cent Railroad Co. v. Sheegog, 215 U.S. 316.

Douglas W. Robert and H. J. Nelson for respondent.

(1) When the instructions in the nature of demurrers to the evidence were given on behalf of the defendants Briscoe and Murphy, without objection or exception on behalf of the plaintiff, and the jury returned a verdict in their favor, and the plaintiff neither filed a motion for a new trial nor took an appeal, such course on the part of the plaintiff amounted to a voluntary dismissal on his part as to said defendants. Harrison v. Bank, 9 Mo. 161; Adamson v. Railroad, 126 Mo.App. 127; Arnold v. Ins. Co., 167 Mo.App. 154; Scott v. Smelting Co., 187 Mo.App. 344; St. John v. Land Co., 201 S.W. 916; Poole v. Lessees, 11 Pet. 185. (2) When the judgment in favor of the two resident defendants became final in their favor, without motion for a new trial or appeal on the part of the plaintiff, and the court sustained the non-resident's motion for a new trial, then for the first time there was no joint cause of action, and the controversy became one wholly between citizens of different states. Yulee v. Vose, 99 U.S. 539; Powers v. Railway, 169 U.S. 92; Whitcomb v. Smithson, 175 U.S. 635; Fritzlee v. Bank, 212 U.S. 364; Great Northern Railway v. Alexander, 246 U.S. 276. (3) Certiorari is not the remedy to review an order of removal to a Federal court. Certiorari lies only when there is a final adjudication of the matter involved. Furthermore, relator has the remedy of a motion to remand, and appeal in the Federal court. State ex rel. v. Landon, 265 S.W. 529; State ex rel. v. Goodrich, 257 Mo. 40; State ex rel. v. Shelton, 154 Mo. 670; State ex rel. v. Walbridge, 123 Mo. 524. Certiorari reaches only defects or errors which appear on the face of the record and which are jurisdictional in their nature. State ex rel. v. Smith, 101 Mo. 174; State ex rel. v. Woodson, 161 Mo. 444; In re Breck, 252 Mo. 302; State ex rel. v. Trimble, 275 S.W. 536.

OPINION

Gantt, J.

Certiorari. The relator seeks to quash the record of the Circuit Court of the City of St. Louis sustaining the petition of the defendant Railroad Company for removal of the cause to the Federal court in the case of William S. Porter v. Chicago, Burlington & Quincy Railroad Company et al. The facts are as follows:

On the 27th of August, 1925, William S. Porter, a citizen and resident of Missouri, brought suit in the Circuit Court of the City of St. Louis against the Chicago, Burlington & Quincy Railroad Company, a citizen of Illinois, for $ 65,000 damages, and later, on the same day, by leave of court, joined as defendants T. A. Briscoe and J. P. Murphy, citizens and residents of Missouri. Summons were duly issued and served on all defendants. The case was one for damages for personal injuries, sustained by plaintiff while a passenger of the defendant Railroad Company, due to a collision of two of defendant's trains. The defendants Briscoe and Murphy were the engineers in charge of the locomotives involved. A joint cause of action was stated in the petition against all three defendants. Defendant Railroad Company did not attack the good faith of plaintiff in joining the resident defendants. Defendants filed separate answers. The case was tried at the April term, 1926, on the 20th, 21st and 22nd of April. At the close of all the evidence, the court, at the request of the defendants Briscoe and Murphy, instructed the jury that plaintiff was not entitled to recover against said defendants. Plaintiff did not except to the giving of these instructions, and did not take an involuntary nonsuit as to said defendants. On the 22nd of April, 1926, the jury returned a verdict in favor of the resident defendants and against the non-resident defendant, the Railroad Company, in the sum of $ 10,000. On the 26th of April, 1926, the Railroad Company filed its motion for a new trial. Plaintiff filed no motion for a new trial. The April term, 1926, of said court ended the 5th day of June, 1926, and the June term of said court began on the 7th day of June, 1926. Plaintiff took no appeal from the judgment in favor of the resident defendants. On the 7th of June, 1926, the court sustained the motion of the defendant Railroad Company for a new trial, and granted same. On the 8th of June, 1926, the Railroad Company filed its petition, bond and proof of service of notice for removal to the Federal court, alleging that the cause was one solely between citizens of different states and involving an amount sufficient to give jurisdiction to that court. No dispute as to the facts was raised upon the record. The question being one simply of law, the respondent immediately approved the petition and bond and ordered the removal. On the 9th of June, 1926, plaintiff filed his affidavit for appeal from the order of the court granting a new trial to defendant Railroad Company.

Since the issuance of our writ of certiorari, relator, William S. Porter, has died. His wife, Meda Porter, having been appointed administratrix of his estate, suggested the death of William S. Porter, and asked to be substituted as relator. An order of substitution was made.

I. Respondent contends that certiorari is not the remedy to review an order of removal from the State court to the Federal court. It is claimed as follows: "The order of removal is merely an interlocutory order and in no sense a final disposition of the case. The order of removal merely transfers the cause to the Federal court, where it shall proceed to trial exactly as in the State court with all the rights of appeal, hence it is not a final disposition of the case." We do not agree to this contention. An interlocutory order is an intermediary step in the proceedings in the court in which the case is tried pending a final determination of the case in that court. Upon the presentation of a petition in the State court for removal of a case to the Federal court, no issue of fact appearing, the State court is called upon to pass on the question of its jurisdiction to try the case. If the State court grants the petition and orders the case removed to the Federal court, it has given its decision on a question of jurisdiction and has disposed of the case in the State court. Of course, a motion may be filed in the Federal court to remand the case to the State court; but the State court by granting the petition has exhausted its authority, and the case is finally put out of the State court. Respondent concedes there is no appeal to the State appellate court from such an order. On this issue has the losing party no remedy in the State court? In the case of State ex rel. v. Mosman, 231 Mo. 474, we ruled the remedy was by certiorari. We adhere to that rule.

Respondent directs our attention to the case of State ex rel. v. Smith, 101 Mo. 174, in which, it is claimed, the rule was stated by Sherwood, J., as follows: "This writ (certiorari) under constitutional provisions is strictly the common-law writ of that name; it only brings up the record and can only reach errors or defects which appear on the face of the record of the tribunal to which it is issued, and which are jurisdictional in their nature." In that case the only question before the court was a question of jurisdiction, and the learned judge undertook to quote only that part of the rule having to do with a question of jurisdiction.

In the case of State ex rel. v. Valliant, 123 Mo. 524, the same learned judge dissented and announced the rule to be that a writ of certiorari could be lawfully issued, not only when the petitioner had no right of appeal or writ of error, but should be issued if the appeal or writ of error was inadequate. Other cases cited by respondent deal only with the question of jurisdiction or excess of jurisdiction, and only that branch of the rule affecting the question of jurisdiction was quoted. It was not necessary to quote the whole rule. This contention is overruled.

II. Respondent next contends that the defendant Railroad Company had no right to remove the case to the Federal court during the trial on the merits. We think respondent is correct in so contending. The case was not a removable one when called for...