Webb v. Southern Ry. Co.

• Decision Date: 20 February 1918
• Docket Number: 3071.
• Citation: 248 F. 618
• Parties: WEBB et al. v. SOUTHERN RY. CO.
• Court: U.S. Court of Appeals — Fifth Circuit

248 F. 618

WEBB et al. v. SOUTHERN RY. CO.

No. 3071.

United States Court of Appeals, Fifth Circuit.

February 20, 1918

Alex C King, of Atlanta, Ga., Alexander M. Garber, of Birmingham Ala., and Hugh Mallory, of Selma, Ala., for plaintiffs in error.

E. W Pettus, of Selma, Ala., and J. T. Stokely, of Birmingham Ala. (Stokely, Scrivner & Dominick, of Birmingham, Ala., Henry McDaniel, of Demopolis, Ala., and Pettus, Fuller & Lapsley, of Selma, Ala., on the brief), for defendant in error.

Before WALKER and BATTS, Circuit Judges, and GRUBB, District Judge.

WALKER Circuit Judge.

This was an action brought in the law and equity court of Marengo county, Ala., to recover damages for the injury to and destruction of property by fire alleged to have been negligently caused by the defendant in error, the Southern Railway Company, a corporation organized under the laws of the state of Virginia. The plaintiffs in the suit were John C. Webb, a citizen of Alabama, the owner of the injured and destroyed property, suing for the use of himself and of two insurance companies, one a corporation of the state of New York and the other a British corporation, and the two insurance companies. The complaint showed that each of these companies had insured against loss by fire property of Webb which was burned, the loss by the fire covered by one of the policies being $12,626.66, and that covered by the other policy being $19,931.84, which amounts were paid to Webb by the respective insurance companies before the suit was brought, and that Webb had assigned in writing to each of the insurance companies, to the extent of the payment made by it, an interest in his claim against the defendant for negligently causing the fire. The defendant undertook to remove the suit to the federal court. The petition for removal alleged that Webb is a citizen of Alabama, that the defendant is a Virginia corporation, with its principal place of business at Richmond, in the Eastern judicial district of that state, and that 'the District Court of the United States for the Northern Division of the Southern District of Alabama, or the District Court of the United States for the Eastern District of Virginia, * * * has jurisdiction to try and determine this suit,' and prayed an 'order of removal of said cause to the said United States District Court for the proper district. ' The condition of the bond which accompanied the petition for removal was as follows:

'The condition of the above obligation is such that, whereas, said Southern Railway Company, a corporation, has applied by petition to the Marengo law and equity court of Marengo county, Ala., for the removal of the above-entitled cause to the District Court of the United States for the Northern Division of the Southern District of Alabama, or to the District Court of the United States for the Eastern District of Virginia: Now, if the said Southern Railway Company, a corporation, shall enter in such District Court, within 30 days from the date of the filing of said petition in this court, a certified copy of the record in this suit, and shall pay all costs that may be awarded by said District Court, if the said District Court shall hold that such suit was wrongfully or improperly removed thereto, then the obligation shall be void; otherwise, to remain in full force and effect.' The state court refused to make an order for the removal of the case. Within the time stated in the condition of the removal bond the defendant filed a transcript of the removal proceedings and of the record in the suit in the United States District Court for the Northern Division of the Southern District of Alabama. Thereupon the plaintiffs filed in that court a motion to remand the case to the state court on the following grounds:

'(1) Because, upon the allegations in the petition to remove and the pleadings, the Southern district of Alabama appeared to be not the district of the residence of either the plaintiffs or of the defendant, and that this court could not properly acquire jurisdiction of the case, it being one of which it would not have had original jurisdiction.

'(2) Because the petition for removal was not one for a removal to the United States District Court for the Southern District of Alabama, but one which prayed for a removal to either that court or to the United States District Court for the Eastern District of Virginia, without saying to which court the removal was prayed, and the bond was conditioned to be void if the record was filed in either of these districts.'

'(3) Because no petition and bond for removal in accordance with the United States statutes permitting such removal has been filed.'

This motion was overruled, and, as a result of a trial, there was a final judgment for the defendant.

The right to remove a suit from a state to a federal court is conditioned upon the party entitled to a removal filing a petition 'for the removal of such suit into the District Court to be held in the district where such suit is pending' and upon his making and filing therewith 'a bond, with good and sufficient surety, for his or their entering in such District Court, within thirty days from the date of filing said petition, a certified copy of the record in such suit, and for paying all costs that may be awarded by the said District Court if said District Court shall hold that such suit was wrongfully or improperly removed thereto and also for their appearing and entering special bail in such suit if special bail was originally requisite therein. ' Judicial Code, Sec. 29 (Comp. St. 1916, Sec. 1011). A petition so framed that its prayer would be granted by an order removing the suit into a court other than 'the District Court to be held in the district where such suit is pending' could not well be regarded as such a petition as the statute prescribes. For a bond to be in substantial conformity with the requirement of the statute its condition must be such that it would be breached by a failure to file a certified copy of the record in the suit in the District Court of the United States 'held in the district where such suit is pending. ' The bond in question in this case did not contain such a condition. Its condition, in so far as it...