Wadleigh v. Standard Life & Accident Ins. Co.

• Decision Date: 08 April 1890
• Citation: 45 N.W. 109,76 Wis. 439
• Parties: WADLEIGH v. STANDARD LIFE & ACCIDENT INS. CO.
• Court: Wisconsin Supreme Court

76 Wis. 439

45 N.W. 109

WADLEIGH

v.STANDARD LIFE & ACCIDENT INS. CO.

Supreme Court of Wisconsin.

April 8, 1890.

Appeal from circuit court, Portage county.S. W. Pinney, C. W. Felker, and Frank C. Stewart, for appellant.

Raymond & Brennan, for respondent.

COLE, C. J.

With its answer the defendant's attorney filed in the office of the clerk of the circuit court, in vacation, on August 2, 1889, a petition and bond for the removal of this cause to the circuit court of the United States for the western district of Wisconsin. On August 21, 1889, the defendant's attorney served on the attorney for the plaintiff a notice in writing that the petition and bond for the removal of the cause were withdrawn; that no steps would be taken to remove the cause to the United States court; and that, at the opening of the state court at the next term thereof, the defendant would move the court for leave to withdraw said petition, and to permit the case to proceed in the state court. This notice was filed with the clerk of the circuit court, September 21, 1889. Accordingly, at the next term of the circuit court for Portage county, the attorney for the defendant appeared and asked the court not to approve of the bond, but to grant leave to withdraw such bond and the petition for removal, basing such application on the notice to the plaintiff previously served and filed, and on the affidavits of its attorney, to the effect that the petition and bond for removal were made by him on his own motion, and that no officer or agent of the defendant had authorized him to remove, or take steps to remove, the cause to the federal court. The circuit court denied the request of the defendant to withdraw the petition and bond for removal of the cause to the federal court, on the ground that it had no jurisdiction to grant the same. From that order this appeal is taken. And the question is, could the defendant waive and renounce its right to remove the cause to the United States court, and consent to the cause proceeding in the state court. We confess we are unable to perceive any ground or reason for holding that it could not waive such a legal right established in its favor. The right of removal to a federal court only concerns the defendant. It involves no principle of public policy that we can see, and we are unable to see any sound reason for saying that the defendant could not waive its right to such removal. It is not like the case of Morse v. Insurance Co., 30 Wis. 496, 20 Wall. 445, where it was held by the supreme court of the United States that a general stipulation in advance of a controversy not to remove a cause to a federal court did not deprive the defendant corporation of the right of removal under the constitution and laws of the United States. It was said by the court that a party could not bind himself in advance by an agreement which may be specifically enforced to forfeit his rights at all times and on all occasions when the case may be presented, but here the defendant sought to waive and relinquish its right of removal in the suit itself, and to suffer it to proceed in the state court. The learned counsel for the appellant say this waiver of the right to resort to the federal court in this particular case only concerns the defendant, and that it rests upon the maxim that a man may renounce a legal right which is conferred for his own advantage, where the waiver touches no question of public policy. This view seems to us eminently sound, and is consonant with principle and good sense. If any authority were necessary to sustain so plain a proposition of law, it will be found in Bank v. Smith, 13 Blatchf. 224;Insurance Co. v. Curtis, 32 Mich. 403;Bank v. Conway, 67 Wis. 210, 30 N. W. Rep. 215; Dill. Rem. Causes, § 154. A question has sometimes been raised whether a party, by contesting a cause in the state court, after it has erroneously refused to grant the application for removal, waives any right. The supreme court has held...