White v. Holt

• Decision Date: 30 June 1883
• Citation: 20 W.Va. 792
• Parties: [a1]WHITE ADM'R v. HOLT, JUDGE & C., AND CHESAPEAKE AND OHIO RAILWAY COMPANY.
• Court: West Virginia Supreme Court

20 W.Va. 792 v. HOLT, JUDGE & C., AND CHESAPEAKE AND OHIO RAILWAY COMPANY.

Supreme Court of West Virginia.

June 30, 1883

Submitted Jan. 24, 1883.

^[aa1] Snyder, Judge, Absent.

1. Under the act of Congress of March 3, 1875, no case pending in a State-court can be removed to a Federal court, unless the application to remove it is made to the State-court, at or before the term, at which it could be first tried, and before the trial. (p. 800.)

2. Where an action on the case was brought in a State-court, and there was a conditional judgment and writ of enquiry of damages awarded at rules, the case could be tried at the first term of the court thereafter; and where at such first term thereafter the defendant appeared and demurred to the declaration, and the case was continued to the next term, and then the defendant filed his petition and bond and asked to have the case removed to the circuit court of the United States, and the State-court refused to remove it, because the application was too late. HELD: The State-court properly refused to order the case removed. (p. 800.)

3. The filing of the petition and bond can not have the effect ipso facto of removing a cause from a State to a Federal court, because it is the duty of a State-court, when an application is made to it to remove a cause therefrom to a Federal court, to judicially pass upon all the questions involved in such application; the sufficiency of the petition and bond, and whether the surety is sufficient; whether the application is made in time; the citizenship of the parties the amount in controversy; to hear the proof on all these questions, and then judicially decide, whether a case for removal is made under the act of Congress, and if satisfied that the cause is removable, to enter an order removing it and if satisfied that the cause is not removable, to refuse to make such order, and proceed with the cause, as if no application to remove had been made. (p. 803.)

4. The facts set up in the petition should be such, as with what already appears on the record, if true, to show, that the suit under the act of Congress is removable. If such facts are not alleged in the petition and do not appear in the record, it is the duty of the State-court to enquire no farther but to refuse to order the removal of the cause. If such facts are alleged in the petition, as show, that, if true, the suit is removable, such facts may be controverted and the court will then hear the evidence pro and con and judicially decide upon the evidence and either enter an order removing or refusing to remove the cause to the United States court. (p. 803.)

5. When a case is not removable, and the State-court has so decided, the obtaining of a transcript of the record and the filing of it in the circuit court of the United States and the docketing of the case there, can have no possible effect upon the jurisdiction of the State-court over said case; and it is the duty of the State-court, even if notified of such docketing of the case in the Federal court, to pay no attention thereto but proceed with the case, as if no application to remove it had ever been made. (p. 803.)

6. Where a State-court had properly refused an application to remove a case to the Federal court, the case not being removable, and after such refusal, the petitioner obtained a record of the case, and filed it in the Federal court, which docketed the case, and the said petitioner then took a copy of said order of the Federal court and filed it in the State-court, and objected to that court proceeding further in the case for the reason, that under such circumstances the case had been docketed in the Federal court, the judge of the State-court refused to proceed, on application the Supreme Court of Appeals of the State will issue a mandamus to compel him to proceed with the case. (p. 813.)

7. This in such a case the Supreme Court of Appeals will do, although the answer to the rule in the mandamus proceeding shows, that a non-suit had been entered in the Federal court, and the Federal court had enjoined the petitioner for the mandamus from prosecuting his petition in the Supreme Court of Appeals. (p. 813.)

8. The court of last resort of a sovereign State cannot by a Federal court by injunction or other process against the litigants be deprived of its power to control by mandamus the inferior courts of the State in the discharge of their duties. (p. 814.)

Petition for a writ of mandamus to compel the circuit court of Greenbrier county to proceed in the trial of an action on the case in which A. E. White, administrator of John D. White, deceased, was plaintiff, and the Chesapeake & Ohio Railway Company was defendant.

The facts of the case are sufficiently stated in the opinion of the Court.

The federal court has no jurisdiction to grant an injunction restraining litigants from proceeding before the state supreme court for mandamus to compel an inferior state court to proceed with the trial of an action.

Alexander F. Mathews for petitioner.

Homer A. Holt for respondent, Holt, judge.

W. H. Hogeman for respondent, C. & O. R. Co.

OPINION

JOHNSON, PRESIDENT.

A. E. White, administrator of J. D. White, deceased, brought an action on the case, in the circuit court of Greenbrier county against the Chesapeake and Ohio Railway Company to recover damages under the statute for the killing of his intestate. The summons issued September 17, 1881, returnable to October rules. At October rules 1881, the declaration was filed claiming fifteen thousand dollars damages. At a circuit court held for said county at the first term after the writ was issued, the case was regularly placed on the docket for trial. At said term on the 10th day of November, 1881, the defendant by its attorney appeared and demurred generally to the declaration, in which demurrer the plaintiff joined. At the next term of said court, to-wit, on the 18th day of April, 1882, the defendant filed a second demurrer to the declaration, and " each count thereof." An inspection of the declaration will show, that it contains but a single count. At the same term the record shows, that the " defendant also presented his petition herein, accompanied by a bond according to the act of Congress praying for the removal of this action to the district court of the United States for the district of West Virginia, sitting at Charleston and exercising circuit court powers, to the filing of which petition, and bond the plaintiff objected, and the court takes time to consider of said objections." On the 28th day of the same month, April 1882, the court sustained the objections to the filing of said bond and petition on the ground recited in its order; " for the reason that the same were not presented in time, because in the opinion of the court this term is not the first term, at which this cause could be tried, and doth also refuse to remove this action, as prayed for in said petition."

The defendant excepted to the ruling and decision of the court. The bill of exception sets out the petition, which alleges, that the matter in dispute, exclusive of costs exceeds five hundred dollars; that the controversy is between citizens of different States, that the plaintiff is a citizen of West Virginia, and the defendant is a citizen of Virginia and, prays, " that the court proceed no further in the case, except to make the order of removal required by law," & c. The petition is not sworn to. The bill of exceptions also sets out the bond, and is signed by Judge McGinness, a judge of another circuit in the State, who was holding court for Judge Holt in his circuit. A second bill of exceptions was also signed to the refusal to remove the cause upon the petition and bond being again tendered, after a special plea had been tendered and rejected, and after the defendant had pleaded the general issue. At the said term the cause was continued on motion of defendant. At the next term of the said court, to-wit, on the 29th day of June, 1882, the following order was entered:

" This day came the parties by their attorneys, and the plaintiff moved the court to proceed with the trial of this cause; which motion the defendant resisted upon the ground and for the reason, that since the last term of this court, a transcript of the record of the proceedings has been taken to the district court of the United States for the district of West Virginia, and that this cause has been there regularly docketed; and it appearing to the satisfaction of this court, that the facts thus stated are true, it doth upon the ground, and for the reason thus alleged by the defendant, and for that reason alone, decline and refuse to proceed further with this case." To which ruling of the court the plaintiff excepted.

On the 14th day of October, 1882, the said plaintiff by counsel presented his petition to this Court praying, a writ of mandamus to be directed to the Hon. Homer A. Holt, judge of the circuit court of Greenbrier county, requiring him to proceed with the trial of said cause, or to show cause why he has not done so. This Court awarded the rule prayed for, which was made returnable on the tenth day of the January term 1883. The rule was duly served on the judge, and also on the Chesapeake and Ohio Railway Company.

The judge of the circuit court in his answer, as the reason why he refused to proceed with the trial of the case, says " he declined and refused to proceed further with said action, because it was made to appear to respondent, that notwithstanding the proceedings had in said action in the circuit court of Greenbrier county at the preceding term, a transcript of the record of said action had prior to such motion, been filed and said action docketed in the district court of the United States for the...