Wilson v. Western Union Telegraph Co.

• Decision Date: 19 March 1888
• Citation: 34 F. 561
• Court: U.S. District Court — Northern District of California
• Parties: WILSON v. WESTERN UNION TEL. CO.

34 F. 561

WILSON v. WESTERN UNION TEL. CO.

United States Circuit Court, N.D. California.

March 19, 1888

H. B Gillis, for plaintiff.

Philip G. Galpin, for defendant.

Before FIELD, Justice, and SAWYER, J.

FIELD Justice.

This action was brought to recover damages alleged to have been sustained by the plaintiff from a collision with the telegraph wires of the defendant, the Western Union Telegraph Company, which, by its negligence, had become detached from the poles by which they were usually held, and were suspended near the ground. It was commenced in the superior court of Siskiyou county, Cal., in June, 1887, and the sheriff served the summons issued on the company the 1st of July following by delivering a copy thereof, attached to a certified copy of the complaint in the action, to one Frank Jaynes, in the city of San Francisco. The plaintiff is a citizen of the state of California, and the defendant is a corporation created under the laws of New York, and is, therefore, to be deemed, for the purposes of jurisdiction in the federal courts, a citizen of that state. On the 23d of July the defendant filed a petition for the removal of the action to the circuit court of the United States, on the ground of the citizenship of the parties in different states, accompanied by the bond required by the act of congress in such cases. Objections were made by the plaintiff to granting the petition, on the ground that no notice of it had been filed or served on him, and that the appearance of the defendant had not been entered; and the petition was denied. The defendant, notwithstanding this denial, had copies of the papers in the state court filed in the circuit court of the United States, and in that court it appeared and put in an answer to the complaint. The circuit court having thus taken jurisdiction, it is moved that the case be remanded to the state court, on the ground that it was unlawfully removed, and by stipulation of parties the motion is submitted to myself and the circuit judge for decision.

The denial by the state court of the petition of the defendants for removal of the action in no respect affects the jurisdiction of the circuit court of the United States, if the action was removable, and the bond offered was such as the statute required. The statute makes the removal upon the filing of the petition with the necessary bond. The order of the state court directing the removal would have been a proper proceeding; it would have been record evidence of the court's acceptance of the bond, and of its acquiescence in the transfer of the action from its jurisdiction. But its refusal to make the order could not take from the circuit court its rightful jurisdiction. The statute of March 3 1887, amending the act of 1875, determining the jurisdiction of the circuit courts of the United States, and regulating the removal of causes from state courts, provides that whenever a party is entitled to remove a suit from a state court to the circuit court of the United States, and desires to do so, he shall, except in certain cases, not material to the question here, file a petition for such removal in the suit at the time, or any time before the defendant is required to answer or plead to the declaration or complaint, and file a bond with good and sufficient surety for his entering in the circuit court, on the first day of its then next session, a copy of the record in the suit, and for paying all costs that may be awarded by that court, if it shall hold that the suit was wrongfully or improperly removed thereto, and also for his appearing and entering special bail in the suit, if special bail was originally requisite therein. And the statute declares that 'it shall then be the duty of the state court to accept said petition and bond, and proceed no further in such suit; and the said copy being entered as aforesaid in said circuit court of the United States, the cause shall then proceed in the same manner as if it had been originally commenced in the said circuit court.' 24 St. 553, c. 373, Sec. 3. As thus seen, no order of the state court or the circuit court is contemplated to transfer the jurisdiction of the action. As said by the supreme court, in Railroad Co. v. Koontz, 104 U.S. 14, speaking of the provisions on this subject in the act of 1875, which were similar to those in the act of 1887:

'It is a well-settled rule of decision in this court that when a sufficient case for removal is made in the state court, the rightful jurisdiction of that court comes to an end, and no further proceedings can properly be had there, unless in some form its jurisdiction is restored. Gordon v. Longest, 16 Pet. 97; Kanouse v. Martin, 15 How. 198; Insurance Co. v. Dunn, 19 Wall. 214; Railroad Co. v. Mississippi, 102 U.S. 135. The entering of the copy of the record in the circuit court is necessary to enable that court to proceed, but its jurisdiction attaches when under the law it becomes the duty of the state court to proceed no further. The provision of the act of 1875 is, in this respect, substantially the same as that of the twelfth section of the judiciary act of 1789, and requires the state court, when the petition and a sufficient bond are presented, to proceed no further with the suit; and the circuit court, when the record is entered there, to deal with the cause as if it had been originally commenced in that court. The jurisdiction is changed when the removal is demanded in proper form, and a case for removal made. Proceedings in the circuit court may begin when the copy is entered.'

It does not appear what relation Frank Jaynes bore to the Western Union Telegraph Company, to render the service of process on him service on the company. This is not, however, important as the company accepted the service as...