131 US 240 Crehore v. Ohio M Ry Co

131 U.S. 240

9 S.Ct. 692

33 L.Ed. 144


May 13, 1889.

Lawrence Maxwell, Jr., for the motion.

[Argument of Counsel from pages 241-242 intentionally omitted]

John Mason Brown, contra.

Mr. Justice HARLAN, after stating the facts in the foregoing language, delivered the opinion of the court.

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This action was brought by the plaintiff in error, who was the plaintiff below, in the Louisville (Kentucky) Law and Equity Court, against the Ohio and Mississippi Railway Company, to recover damages for personal injuries alleged to have been sustained by him, while a passenger upon the road of that company, by reason of the wilful neglect of those by whom it was operated. The company, on the 24th of November, 1884, filed its petition, accompanied by bond in proper form, for the removal of the case, upon the ground of the diverse citizenship of the parties, into the Circuit Court of the United States for the District of Kentucky. Thereupon an order was made by the state court that it would proceed no further. The case was docketed and tried in the Circuit Court of the United States, and resulted in a verdict for the defendant, followed by a judgment dismissing the plaintiff's petition. From that judgment the plaintiff prosecuted a writ of error.


At the argument in this court at present term, attention was called to the fact that the record did not sufficiently show the citizenship of the parties at the commencement of the action, as well as at the time of the application for removal. Stevens v. Nichols, 130 U.S. 230. Upon this ground an order was entered reversing the judgment of the Circuit Court, and remanding the cause, with directions that it be sent back to the state court. The case is again before us upon a motion in behalf of the railway company, that the judgment of reversal be so framed as to omit therefrom an absolute direction to the Circuit Court to remand the cause to the state court, to the end that the defendant may take steps for the correction and amendment of the petition for removal, and of the record and proceedings in that behalf.


It is conceded that the record does not show affirmatively the citizenship of the parties at the commencement of the action in the state court, and that the judgment, for that reason, must be reversed.


Upon the filing by either party, or by any one or more of the plaintiffs or defendants, 'entitled to remove any suit' mentioned in the first or second sections of the act of March 3, 1875, (18 St. 470,) of the petition and bond required by it third section, 'it shall then be the duty of the state court to accept said petition and bond, and proceed no further in such suit.' The effect of filing the required petition and bond in a removable case is, as said in Railroad Co. v. Mississippi, 102 U. S. 135, 141, that the state court is thereafter 'without jurisdiction' to proceed further in the suit; or in Railroad Co. v. Koontz, 104 U. S. 5, 14, its rightful jurisdiction comes to 'an end;' or in Steam-Ship Co. v. Tugman, 106 U.S. 118, 122, 1 Sup. Ct. Rep. 58, 'upon the filing, therefore, of the petition and bond—the suit being removable under the statute—the jurisdiction of the state court absolutely ceased, and that of the circuit court of the United States immediately attached.' It has also been repeatedly held, particularly in Stone v. South Carolina, 117 U. S. 430, 432, 6 Sup. Ct. Rep. 799, following substantially Rai road Co. v. Koontz, that 'a state court is not bound to surrender its jurisdiction of the suit on a petition for removal until a case has been made which on its face shows that the petitioner has a right to the transfer;' and that 'the mere filing of a petition for the removal of a suit, which is not removable, does not work a transfer. To accomplish this the suit must be one that may be removed, and the petition must show a right in the petitioner to demand the removal. This being made to appear on the record, and the necessary security having been given, the power of the state court in the case ends, and that of the circuit court begins.' These decisions were in line with Insurance Co. v. Pechner, 95 U. S. 183, 185, arising under the judiciary act of 1789, in which it was held that a 'petition for removal, when filed, becomes a part of the record in the cause;' that the party seeking the removal should state 'facts which, taken in connection with such as already appear, entitle him to transfer;' and that, 'if he fails in this, he has not, in law, shown to the court that it cannot 'proceed further with the cause." It thus appears that a case is not, in law, removed from the state court, upon the ground that it involves a controversy between citizens of different states, unless, at the time the application for removal is made, the record, upon its face, shows it to be one that is removable. We say, upon its face, because 'the state court is only at liberty to inquire whether, on the face of the record, a case has been made which requires it to proceed no further;' and 'all issues of fact made upon the petition for removal must be tried in the circuit court.' Stone v. South Carolina, 117 U. S. 430, 432, 6 Sup. Ct. Rep. 799; Carson v. Hyatt, 118 U. S. 279, 287, 6 Sup. Ct. Rep. 1050. If the case be not removed, the jurisdiction of the state court remains unaffected, and, under the act of congress, the jurisdiction of the federal court could not attach until it becomes the duty of the state court to proceed no further. No such duty arises unless a case is made by the record that entitles the party to a removal.


All this is made entirely clear by the express requirement of the act of 1875, that the circuit court shall remand 'to the court from which it was removed' any cause brought from that court, whenever it appears that it is not one of which the federal court can properly take cognizance. Cameron v. Hodges, 127 U. S. 322, 326, 8 Sup. Ct. Rep. 1154. If a suit entered upon the docket of a circuit court as removed upon the ground of the diverse citizenship of the parties was never, in law, removed from the state court, no amendment of the record made in the former could affect the jurisdiction of the latter, or put the case rightfully on the docket of the circuit court as of the date when it was there docketed; for the only mode provided in the act of congress by which the jurisdiction of the state court of a controversy between citizens of different states can be divested is by presenting a petition and bond in that court showing, in connection with the record, a case that is removable. The present motion, in effect, is that such amendment of the record may be made in the circuit court, as will show that this case might have been removed from the state court, not that, in law, it has ever been so removed. This question was before us at the present term in Stevens v. Nichols, above cited, which was brought in a state court, and tried in a circuit court of the United States, as one involving a controversy between citizens of different states, and therefore removable from the state court. But, as the record did not show that it was a removable case, the judgment was reversed, with directions to send the case back to the state court. It is proper to say that the question was there fully considered, although it was not deemed necessary to state the reasons for the conclusion then reached. The present motion, bringing that question distinctly before us, seemed to require that the reasons for our conclusion be stated with fullness, especially because inadvertent language in some previous cases is interpreted as announcing different views from those now expressed. The motion to modify the order of reversal, heretofore made, is denied.