Young v. Southern Bell Tel. & Tel. Co

• Decision Date: 27 October 1906
• Citation: 75 S.C. 326,55 S.E. 765
• Court: South Carolina Supreme Court
• Parties: YOUNG . v. SOUTHERN BELL TELEPHONE & TELEGRAPH CO.

55 S.E. 765

75 S.C. 326

YOUNG .

v.SOUTHERN BELL TELEPHONE & TELEGRAPH CO.

Supreme Court of South Carolina.

Oct. 27, 1906.

Removal of Causes—Dismissal.—Right to

Sue Again.

Plaintiff brought suit in a state court and the action was removed into the federal court because of diverse citizenship and of amount, and, on motion of plaintiff, the action was discontinued and the costs paid. Held, that he could bring an action thereafter in the state court on the same cause of action for such an amount as would give the state court exclusive jurisdiction.

[Ed. Note.—For cases in point, see Cent Dig. vol. 42, Removal of Causes, § 217.]

Appeal from Common Pleas Circuit Court of Charleston County, Memminger, Judge.

Action by Martin Young against the Southern Bell Telephone & Telegraph Company. From an order dismissing the action, plaintiff appeals. Reversed.

Bryan & Bryan, for appellant.

Smythe, Lee & Frost, and Hunt Chipley, for respondent.

JONES, J. The plaintiff commenced action in the court of common pleas for Charleston county on September 6, 1902, to recover $10,000 damages for personal injury alleged to have been suffered by him through defendant's negligence. On September 19, 1902, a petition and bond for removal on the ground of diverse citizenship was duly filed and accepted, and subsequently the cause was actually transferred to the United States Circuit Court for South Carolina. On April 21, 1903, the United States Court, on motion of plaintiff's attorney, passed an order discontinuing the cause on payment of costs. After payment of the costs, plaintiff, on April 24, 1903, upon new summons and complaint brought this suit in the court of common pleas for Charleston county upon the same cause of action except that the damages were laid in the sum of $2,000. The defendant answered and the case was submitted to a jury at November term, 1904, and resulted in a mistrial.

Thereafter, in March, 1905, defendant on notice moved, before Judge Memminger, to dismiss all the proceedings in the cause on the ground that the court had no jurisdiction thereof, and that the jurisdiction of said cause is vested exclusively in the United States Court Judge Memminger granted the motion, and dismissed the case for want of jurisdiction upon the rule and reasoning stated in Baltimore and Ohio R. R. Co. v. Fulton, 59 Ohio St. 575, 53 N. E. 265, 44 U R. A. 520. That case held that, where a case has been properly removed from a state to a federal court, the jurisdiction of the state court ends forever, unless perhaps the case is remanded with the consent of defendant; that the jurisdiction of the federal court over the cause of action remains exclusive even though the suit is disposed of in the federal court otherwise than upon Its merits. The reasoning by which this result is reached Is based upon the court's view of the spirit and policy of the statute authorizing removal on the ground of a diversity of citizenship as resting upon the fact that litigation between citizens of different states must be more or less affected by local Influences, and that such a policy applies as well to any renewal of the action after it has been disposed of in the federal court as to the period of its pendency; and the further reason Is given that a contrary rule would be productive of a very inconvenient practice and much abuse, in enabling a party to permit his case to be dismissed by failure to prosecute in the federal court with the purpose of recommencing it in the state court, and thus entailing expense and trouble on the defendant in causing It to be removed or submit to the jurisdiction of the state court. The only case cited in that opinion as directly supporting the same was Cox v. East Tenn., etc., R. R. Co., 68 Ga. 446.

The Supreme Court of Georgia, howevet, in the case of Mclver v. Florida, etc., R. R. Co., 110 Ga. 223, 36 S". E. 775, 65 L. R. A. 437, holds the contrary view, and declares that the Cox Case merely decided that after nonsuit in a federal court, a renewal of the action in the state court was not a part of the original case or on the same footing with it with respect to the statute of limitations. The Georgia Supreme Court quoted with approval the following forceful language of a writer In Case and Comment, of July, 1899, at page 228 of 110 Ga., at page 777 of 36 S. E. (65 L. R. A. 437): "The possibility that a plaintiff might Improperly permit the dismissal of a case after removal for the purpose of beginning again in the state eourt, and thus compel the defendant to remove the causa again or else submit to the state court, is one ground of the Ohio decision. But the unnecessary trouble caused to a defendant by dismissing an action and suing anew is not confined to cases that have been removed from a state court. It does not, in other cases, prevent the plaintiff from commencing a new action after dismissing the former one, and the difference in respect to actions removed into the federal court is only in degree. The distinction between reinstatement of an action and the bringing of a new action does not seem to have been much con sidered in this case. Because a case can be reinstated only by the court that dismissed It, it is said that 'by parity of reasoning, ' a state court cannot pass on the right of the plaintiff to recommence an action after It has been dismissed by a federal court. But commencement of a new action, although for the same cause, Is not a reinstatement but a distinct and independent case. Exclusive jurisdiction of an action is a very different thing from exclusive jurisdiction of all possible actions for the same cause. An election to bring an action In one of two courts of concurrent jurisdiction is not usually Irrevocable. After dismissal of the first one, the plaintiff has the same choice between the courts that he had originally. There seems to be no reason why this should not apply where the concurrent jurisdiction is in state and federal courts. If bringing an action originally in the federal court does not give it such exclusive jurisdiction of the entire cause of action as to prevent bringing any action therefor in a state court after the federal suit Is dismissed, why should this be the result of removing a suit from a state court into a federal court? In either case, It Is difficult to see why, after an action has been dismissed without prejudice to the right to bring a new action, the plaintiff has not the same election that he had In the beginning with respect to jurisdiction."

The Supreme Court of Georgia further declares: "The act of Congress provides that certain cases may be removed from the state court to the federal court, but this does not mean that the cause of action is removed. The act refers in terms to suit and not cause of action. Until the state court is absolutely deprived of jurisdiction of a particular cause of action it may take jurisdiction of, and pass upon, the same, with the exceptions above noted—that, when the federal court has taken jurisdiction, the state court cannot take any action in connection with the same so long as the cause is pending in the federal court But when that court denies to the plaintiff a hearing, or fails for any reason to pass upon the sufficiency of his cause of action, be may bring the same again in the state court and invoke an adjudication of that court. And the fact that the new suit...