Vaughan v. McArthur Bros. Co.

• Decision Date: 15 September 1915
• Docket Number: 4043.
• Citation: 227 F. 364
• Parties: VAUGHAN et al. v. McARTHUR BROS. CO.
• Court: U.S. Court of Appeals — Eighth Circuit

227 F. 364

VAUGHAN et al. v. McARTHUR BROS. CO.

No. 4043.

United States Court of Appeals, Eighth Circuit.

September 15, 1915

Henry B. Davis, of St. Louis, Mo. (John A. Harrison and Charles Erd, both of St. Louis, Mo., on the brief), for plaintiffs in error.

Robert E. Collins, of St. Louis, Mo. (Stanley D. Pearce, of St Louis, Mo., on the brief), for defendant in error.

Before SANBORN, ADAMS, and SMITH, Circuit Judges.

SMITH Circuit Judge.

This suit at law was brought in the circuit court of the city of St. Louis by George B. Vaughan and Michael Conroy, a copartnership doing business under the firm name of Vaughan &amp Conroy, against a corporation, McArthur Bros. Company, upon a written contract which recited that George B. Vaughan was of Kirkwood, Mo., and Michael Conroy of Buffalo, N.Y. Vaughan &amp Conroy agreed to do certain work as subcontractors under McArthur Bros. Company in the construction of the Hillsboro-Mitchell cut-off of the Chicago, Indianapolis & St Louis Short Line. This suit was brought to recover approximately $20,000, alleged to be the balance due under that contract. The defendants filed a petition for removal to the federal court, alleging that George B. Vaughan was at the commencement of the suit and still was a citizen and resident of the state of Missouri and a nonresident of Illinois, and that Michael Conroy was at the time of the commencement of the suit and still was a citizen and resident of the state of New York and a nonresident of the state of Illinois, and that the defendant was at the commencement of the suit and still was a corporation organized and existing under and by virtue of the laws of Illinois and was a citizen and resident of Illinois and a nonresident of Missouri and New York. The petition was in other respects in due form and accompanied by a bond. On June 2, 1905, the petition was sustained and order of removal made by the circuit court of the city of St. Louis. The petition was duly filed in the United States Circuit Court on August 1, 1905. The defendant filed answer on September 20, 1905. The plaintiffs filed reply on September 23, 1905. On October 31, 1905, and on April 23, 1906, the cause was continued generally by agreement. On May 26, 1906, plaintiffs with leave of court filed an amended reply. On September 26, 1906, the court, by consent of parties, in pursuance of a stipulation to that effect, ordered that Marion C. Early be appointed referee, with power to try all issues and report his findings thereon to the court.

Nothing further was done in open court until June 4, 1908, when, for the first time, the appearance of one of the present counsel for plaintiffs was entered. He at once filed a motion in which it was alleged that after his appointment Mr. Early qualified as referee and took some evidence, but ceased doing so, and asked for an order on the referee to proceed with said hearing or show cause why he should not. Upon this motion, on the 6th day of June, 1908, the referee was ordered to show cause by June 15, 1908. On the return day Mr. Early reported he had qualified and taken evidence for several days, when plaintiffs and defendant, through their attorneys, announced they had agreed on a plan to arbitrate the cause and requested him to suspend the further taking of testimony, which he did; that later he was notified by both plaintiffs and defendant that the controversy had been settled by arbitration, and the case would be dismissed. Upon the coming in of this report the defendant filed a motion to dismiss, and the court on June 15, 1908, ordered the same referee to hear this motion and report thereon to the court. On March 12, 1909, Mr. Early filed his report in favor of the defendant on said motion to dismiss. Plaintiffs filed exceptions on March 15, 1909. On March 19, 1909, the court overruled the exceptions and ordered the substitution of the Cleveland, Cincinnati, Chicago & St. Louis Railway as defendant, and that it pay the amount of the award of the arbitration into the registry of the court, and that the case be dismissed as to McArthur Bros. Company. On September 21, 1909, the cause was by consent of parties continued generally. On June 21, 1910, plaintiffs having made application for leave to file an amended petition, their application was denied. On September 20, 1910, and March 21 and September 26, 1911, the cause by consent of parties was continued generally. On March 19, 1912, the cause was dismissed for want of prosecution, and the next day this order was vacated and the cause reinstated and continued to the next term of court. On October 8, 1912, the plaintiffs with leave of court filed an amended petition claiming approximately $40,000. To this the defendant made answer on October 29, 1912, and the plaintiffs filed reply on November 7, 1912. On December 3, 1912, the parties stipulated that either party might use any of the evidence theretofore taken (presumably before the referee) on the trial of the case. On April 22, 1913, the plaintiffs filed a motion to remand the case to the circuit court of the city of St. Louis upon the ground that:

'At the date of the filing and presentation of said petition (of removal) and at the time of and long before the bringing and commencement of this suit, the plaintiff Michael Conroy was and ever since has been and still is, and at all times since the commencement of this suit and ever since the presentation of said petition and the entry of said order of removal thereon has been, a citizen and resident of the state of Illinois, and that at all times herein above mentioned the defendant McArthur Bros. Company was and now is a citizen and resident of the state of Illinois'-- and consequently the case was not removable.

On April 29, 1913, this motion was sustained. At the same time a motion to tax the costs to plaintiffs was submitted. On May 23, 1913, the court ordered all costs after the removal taxed to plaintiffs, except the costs of the arbitration proceedings. A writ of error was allowed upon the application of plaintiffs.

Before the act of March 3, 1875, there could be no appeal or writ of error on an order to remand a cause, such order was not a final judgment or decree in the sense which authorizes an appeal or writ of error. Railroad Company v. Wiswall, 23 Wall. 507, 23 L.Ed. 103. By the act of March 3, 1875, it was expressly provided:

'Sec. 5. That if, in any suit commenced in a Circuit Court or removed from a state court to a Circuit Court of the United States, it shall appear to the satisfaction of said Circuit Court, at any time after such suit has been brought or removed thereto, that such suit does not really and substantially involve a dispute or controversy properly within the jurisdiction of said Circuit Court, or that the parties to said suit have been improperly or collusively made or joined, either as plaintiffs or defendants, for the purpose of creating a case cognizable or removable under this act, the said Circuit Court shall proceed no further therein, but shall dismiss the suit or remand it to the court from which it was removed as justice may require, and shall make such order as to costs as shall be just; but the order of said Circuit Court dismissing or remanding said cause to the state court shall be reviewable by the Supreme Court on writ of error or appeal, as the case may be. ' Section 5 (18 Stat. 470, 472).

But the latter provision of this section was repealed by the act of 1887 as corrected by the act of 1888 (24 Stat. 552; 25 Stat. 433, 435); and substantially those laws in that respect were re-enacted by section 28 of the Judicial Code (Comp. St. 1913, Sec. 1010). From that time it was uniformly held no appeal or writ of error will lie to an order to remand. Morey v. Lockhart, 123 U.S. 56, 8 Sup.Ct. 65, 31 L.Ed. 68; Sherman v. Grinnell, 123 U.S. 679, 8 Sup.Ct. 260, 31 L.Ed. 278; Richmond & Danville R.R. Co. v. Thouron, 134 U.S. 45, 10 Sup.Ct. 517, 33 L.Ed. 871; Gurnee v. Patrick, 137 U.S. 141, 11 Sup.Ct. 34, 34 L.Ed. 601; Birdseye v. Shaeffer, 140 U.S. 117, 11 Sup.Ct. 885, 35 L.Ed. 402; Chicago, St. Paul, Minneapolis & Omaha Ry. Co. v. Roberts, 141 U.S. 690, 12 Sup.Ct. 123, 35 L.Ed. 905; Joy v. Adelbert College; 146 U.S. 355, 13 Sup.Ct. 186, 36 L.Ed. 1003; Bender v. Pennsylvania Co., 148 U.S. 502, 13 Sup.Ct. 640, 37 L.Ed. 537; Illinois Central R.R. Co. v. Brown, 156 U.S. 386, 15 Sup.Ct. 656, 39 L.Ed. 461; Missouri Pacific Ry. v. Fitzgerald, 160 U.S. 556, 580, 16 Sup.Ct. 389, 40 L.Ed. 536; German Nat. Bank v. Speckert, 181 U.S. 405, 21 Sup.Ct. 688, 45 L.Ed. 926.

It is conceded that a writ of error would not lie to the order to remand; but the judgment as to costs was final, and plaintiffs contend and defendant denies a writ of error...