Imágenes de páginas
PDF
EPUB
[ocr errors]

time.46 It may deny a motion for a remand upon that ground, if the defendant gives a reasonable excuse for his delay and offers to file the transcript at once.47 A defect in the transcript is no ground for a remand. The remedy for such a defect is a writ of certiorari for a diminution of the record.48

Where the complaint shows the value of the matter in dispute, it ordinarily cannot be contradicted,49 unless the petition charges a fraudulent understatement, which is not denied by the plaintiff 50 or is conclusively proved by the defendant; 51 but where the recovery of a specific thing, as in ejectment or replevin, is sought,52 or an injunction is prayed,53 it seems that the question

46 St. Paul & C. R. Co. v. MeLean, 108 U. S. 212, 2 Sup. Ct. 498, 27 L. ed. 703; Bright v. Milwaukee & St. P. R. Co., Fed. Cas. No. 1,877 (14 Blatchf. 214); Jackson v. Mutual Life Ins. Co., Fed. Cas. No. 7,141 (3 Woods 413); McLean v. St. Paul & C. Ry. Co., Fed. Cas. No. 8,892 (16 Blatchf. 309); affirmed, St. Paul & C. R. Co. v. MeLean, 108 U. S. 212, 2 Sup. Ct. 498, 27 L. ed. 703; Kidder v. Featteau, 2 Fed. 616 (1 McCrary 323); Woolridge v. McKenna, 8 Fed. 650; Hall v. Brooks, 14 Fed. 113 (21 Blatchf. 167); McGregor v. McGillis, 30 Fed. 388.

47 Railroad Co. v. Koontz, 104 U. S. 5, 26 L. ed. 643; St. Paul & C. Ry. Co. v. McLean, 108 U. S. 212, 216, 27 L. ed. 703, 704; Bright v. Milwaukee & St. P. R. Co., 14 Blatchf. 214; Kidder v. Featteau, 2, Fed. 616 (1 McCrary 323); Woolridge v. McKenna, 8 Fed. 650; Hall v. Brooks, 14 Fed. 113 (21Blatchf. 167); Winchell v. Coney, 27 Fed. 482; Rowell v. Hill, 28 Fed. 433; McGregor v. McGillis, 30 Fed. 388; Lucker v. Phoenix Assur. Co., 66 Fed. 161.

48 Dennis v. Alachua County, Fed. Cas. No. 3,791 (3 Woods 633);

Cook v. Whitney, Fed. Cas. No. 3,166 (3 Woods 715). See § 553,

supra.

49 Smith v. Western Union Tel. Co., 79 Fed. 132. But see Building & Loan Ass'n of Dakota v. Cunningham (Texas), 47 S. W. 714. Upon a proceeding to condemn a right of way, where the party seeking the condemnation alleged that the interest of the removing party in the land was of merely nominal value, and the owner, in his petition for a removal, averred that the matter in controversy far exceeded $2,000 in value; it was held that the averments in the petition for the removal should control. Postal Tel. Cable Co. v. Southern Ry. Co., 88 Fed. 803.

50 See supra, § 547a; infra, $556b.

51 Swann v. Mutual Reserve Fund Life Ass'n, 116 Fed. 232 (where the fact that plaintiff claimed less than the amount, to which he was entitled, was, in the absence of a fraud, held insufficient to justify a removal); Martin v. City Water Co., 197 Fed. 462.

52 Corbin v. Pike, 37 Iowa 637. 53 Langdon v. Hillside Coal & Iron Co., 41 Fed. 609; New Castle v.

4

depends upon the evidence submitted, irrespective of fraud,54 the burden of proof being upon the defendant.55 The quality of the testimony offered, and not merely the number of the witnesses, will determine the decision.56

Where the complaint does not show the value of the matter in dispute, an averment concerning this in the petition for removal will, unless contradicted, be conclusive upon a motion to remand.57

The authorities are not harmonious as to whether a motion to remand should be denied when the record shows a case for a removal upon a different ground from that alleged in the petition.58 It has been said that, when the jurisdiction of the Federal court is doubtful, the cause should be remanded.59

Western Union Telegraph Co., 152
Fed. 569.

54 Corbin v. Pike, 37 Iowa 637.
55 Davies v. Wells, 134 Fed. 139;
New Castle v. Western Union Tel.'
Co., 152 Fed. 569.

56 Corbin v. Pike, 37 Iowa 637. 57 Langdon v. Hillside Coal & Iron Co., 41 Fed. 609; Mull v. Parrott Bros. Co., 218 Fed. 713; Port of Seattle v. Oregon & W. R. Co., 242 Fed. 986; Woodall v. Clark, 254 Fed. 526. See Chesbrough v. Woodworth, C. C. A., 251 Fed. 881. As to the effect of a waiver in the complaint see Collins v. Twin Falls North Side Land & Water Co., 204 Fed. 134; Harley v. Firemen's Ins. Co., 245 Fed. 471, and supra, § 6. 58 See § 545, supra.

59 Heath v. Austin, Fed. Cas. No. 6,305 (12 Blatchf. 320); Deakin v. Lea, Fed. Cas. No. 3,695 (11 Biss. 27); Evans v. Faxon, 10 Fed. 312 (11 Biss. 175); Wolff v. Archibald, 14 Fed. 369 (4 McCrary 581); Levy v. Laclede Bank, 18 Fed. 193; State v. Bradley, 26 Fed. 289; Kessinger v. Vannata, 27 Fed. 890 (holding that where the question, whether a Fed. Prac. Vol. III-56

State statute was unconstitutional, was doubtful the case should be remanded); Fitzgerald v. Missouri Pac. Ry. Co., 45 Fed. 812; Blue Bird Min. Co. v. Largey, 49 Fed. 289; Largey v. Blue Bird Min. Co., 49 Fed. 292; Hutcheson v. Bigbee, 56 Fed. 329; Johnson v. Wells, F. & Co., 91 Fed. 1; Plant v. Harrison, 101 Fed. 307; McKown v. Kansas & T. Coal Co., 105 Fed. 657; Nash v. McNamara, 145 Fed. 541; Mathe V. McNamara, 145 Fed. 541; Mathews Slate Co. v. Mathews, 148 Fed. 490 (holding that the question whether a State statute could not be enforced in the Federal court was SO doubtful that the cause should be remanded); Wrightsville Hardware Co. v. Hardware & W. Mfg. Co., 180 Fed. 586; Kamenicky v. Catterall Printing Co., 188 Fed. 400, in which the author was counsel; Jackson v. Hooper, 188 Fed. 509; Drainage Dist. No. 19 v. Chicago, M. & St. P. Ry. Co., 198 Fed. 253; Strother v. Union Pac. R Co., 220 Fed. 731; Re Mississippi River Power Co., 247 Fed. 194; Orr v. Baltimore & O. R. R. Co., 242

The motion should be decided upon the record as it stood when the petition for a removal was filed.60 An amended pleading filed in the Federal court 61 or a pleading filed in the State court subsequent to the removal 62 cannot be considered. The decision upon a motion to remand must be based upon facts appearing on the record.

Suspicions are insufficient to justify the order.63 Upon granting a motion to remand, the court has no power to dismiss the bill, nor to set aside service of process 65 but can merely remand the cause to the State court.

It has been held that the fact that the Federal court, upon a motion to remand, had no power to decide a motion made by a nonresident to quash the service of process upon a resident de

Fed. 608; Ostrom v. Edison, 244 Fed. 228, 229; Harley v. Firemen's Fund Ins. Co., 245 Fed. 471. For cases of estoppel of the defendant, see Mazieka v. North & Judd Mfg. Co., 176 Fed. 747; Baldwin v. Pacific Power & Light Co., 199 Fed. 291. Contra, Heath v. Austin, Fed. Cas. No. 6,305 (12 Blatchf. 320); Concord Coal Co. v. Haley, 76 Fed. 882.

60 Bernheim v. Louisville Property Co., 221 Fed. 273.

61 Ibid.

62 Infra, § 554, supra, § 6.

63 Hayward v. Nordberg Mfg. Co., 85 Fed. 4, 29 C. C. A. 438. Contra, Cassidy v. Atlanta & C. A. L. Ry. Co., 109 Fed. 673 (where, after a* removal by a nonresident defendant, the plaintiff entered a nonsuit as to him, leaving the only defendant a resident of the same State with the plaintiff, and then moved to remand the cause; it was held that the order should be for a dismissal and not for a remand).

64 Richmond v. Brookings, 48 Fed. 241; Thacker Coal & Coke Co. v. Norfolk & Western Ry. Co., 171 Fed. 271. Contra, Merchants' Nat. Bank

v. Brown, 17 Fed. 161 (4 Woods 263); Cassidy v. Atlanta & C. A. L. Ry. Co., 109 Fed. 673, where plaintiff entered a nonsuit as to the nonresident defendant and moved to remand; but the Federal court denied his motion and dismissed the whole case. Lawrence v. Southern Pac. Co., 180 Fed. 822; where, it appearing that there was an indispensable party, whose joinder would defeat the Federal jurisdiction, the court dismissed the case, although the result of it was that the court could not maintain the suit in any forum. In Baum v. Longwell, 200 Fed. 450, the bill did not state a case of Federal jurisdiction, but the defendant filed a cross-bill setting forth such a cause of action. The court sustained a demurrer to the bill for want of jurisdiction, but retained the case for hearing upon the cross-bill, which, it appeared, could dispose of the entire controversy between the parties.

65 Bryan v. Barriger, 251 Fed. 328.

fendant did not preclude a consideration of the question, whether such resident was in court or not at the time limited for the filing of the petition for the removal.66

Where a case was removed by an officer of the United States, upon the ground that it was brought because of an act done under the revenue laws, and that did not appear upon the pleadings, it was held that the question would not be determined upon a motion for remand, but would be postponed until the trial.67

A motion to remand will not be granted because the Federal courts enforce a different rule of damages from that which prevails in the State tribunals; 68 nor because of the effect upon the general proceedings for widening the streets of a city in case of a decision of the Federal court against the right to widen streets on the land of a railroad company, or upon the amount of the value of the property of such corporation or of the assessments for benefits, which should be made against the same; 69 nor because the evidence taken in the Federal court will not be admissible in the State court; 70 nor, it was held, under the Act of 1875, because the defendant had given a bond in the State probate court, which might have affected the jurisdiction of the Federal court to entertain the suit originally." 71

72

It has been held: that where there has been a removal of a suit seeking relief which the Federal court has no power to grant; or of a case of which such court could not acquire jurisdiction,73 or where all the property of a foreign corporation has been placed in the custody of receivers appointed by the State courts, so that any judgment recovered in the Federal court must be referred to the State court for payment; the case should be remanded.74

66 Diday v. New York, P. & O. R. Co., 107 Fed. 565.

67 Dennistoun v. Draper, Fed. Cas. No. 3,804 (5 Blatchf. 336).

68 Free V. Western Union Tel. Co., 122 Fed. 309.

69 Union Pac. R. Co. v. Myers, 115 U. S. 1, 5 Sup. Ct. 1113, 29 L. ed. 319.

70 Birdseye v. Shaeffer, 37 Fed. 821; writ of error dismissed, Birdseye v. Nickerson, 140 U. S. 672, 11

Sup. Ct. 1017, 35 L. ed. 403.

71 Filer v. Levy, 17 Fed. 609. 72 City of Knoxville v. Southern Paving Const. Co., 220 Fed. 236; Williams v. Provident Life & Trust Co., C. C. A., 242 Fed. 417. But see Closser v. Strawn, 227 Fed. 139.

73 Nickels v. Pullman Co., 268 Fed. 545.

74 Goldberg, Bowen & Co. v. German Ins. Co., 152 Fed. 831.

It has been held that, where the complaint sets out several causes of action, one of which is removable because of a difference of citizenship, and the others are assigned claims over which the Federal court would have had no original jurisdiction, the whole case can be removed.75 Where the plaintiff prayed for an injunction and for damages, the injunctive relief being ancillary to a suit previously pending in the State court; it was held that, although the claim for damages might have been separately removable, the court, upon a motion to remand, had no power to order the pleadings recast into two suits, in law and equity; but that the whole must be remanded.76 Where, before the removal, a rule had been issued directing the defendant to show cause why he should not be attached for contempt of an injunction in the suit, the Federal court remanded the contempt proceedings, but kept jurisdiction of the principal suit.77

§ 556a. Waiver of right to a remand. There can be no waiver of the right to a remand because the record of evidence fails to show the requisite diversity of citizenship, or that the suit arises under the Constitution or laws of the United States,2 or that the value of the matter in dispute is less than two thousand dollars.3

When a defendant, who had removed the case because of difference of citizenship between the plaintiff and all of the defendants but one, whom he alleged to be a nominal party, opposed a motion to remand by contending that he was the real party plaintiff and that the only actual controversy was between himself and the other defendants, who were citizens of different States, and where the State court had decided, upon his application for a removal, that there was no separate controversy which gave him the right thereto, it was held that he

75 Sharkey v. Port B. Mill Co., 92 Fed. 426; s. c., C. C. A., 102 Fed. 259; Hoge v. Canton Ins. Office, 103 Fed. 513; §§ 537g, 541, supra.

76 Ladd v. West, 55 Fed. 353. 77 Voorhees v. Albright, Fed. Cas. 16,999.

§ 556a. 1 Mansfield C. & L. M. Ry. Co. v. Swan, 111 U. S. 379, 28 L. ed. 462, see supra, §§ 546, 556.

2 Ferguson v. Ross, 38 Fed. 161, 3 L. R. A. 322; Wabash R. R. Co. v. Barbour, C. C. A., 73 Fed. 513. 3 Lazensky V. Supreme Lodge Knights of Honor, 32 Fed. 417. See supra, $556.

4 Mayer v. Denver, T. & Ft. W. R. Co., 41 Fed. 723.

« AnteriorContinuar »