Auracher v. Omaha & St. L. R., 102 F. 1

Auracher v. Omaha & St. L. R.

102 F. 1 | U.S. Circuit Court for the Southern District of Iowa | 1900

SUTRAS, District Judge.

This action was brought in the district court of Page county, Iowa, to recover damages for alleged overcharges on shipments of produce by plaintiff over the line of the defendant company, a common carrier engaged in interstate commerce business. Upon petition of the defendant company the case was ordered removed into this court, the application for removal being based upon the provisions of the judiciary acts of 1887-88. From the averments of the pleadings and admissions of counsel, it appears, *2and must be held, that tbe action is based upon alleged violation of the interstate commerce act, and the defendant now moves that the action be dismissed for the reason that the state court had” not jurisdiction over the subject-matter of the controversy. G-ranting this to be true, the question arises whether the case should be dismissed for want of jurisdiction in the state court over the case as originally brought, or whether it should be remanded to the state court because it is not properly removable.

When the argument was had, I expressed the opinion that, under the special circumstances of the case, the proper order would be to remand the- case to the state court upon the ground that the removal was improvidently made; because the state court did not have jurisdiction over the subject-matter concurrent with the United States court; but upon reflection I hold that the question of jurisdiction is a controversy which justified the removal, as the parties are citizens of different states, and the amount involved exceeds $2,000, exclusive of interest and costs.

It is not seriously questioned that the subject-matter of the action upon the merits is not within the jurisdiction of the state court, and this court, as its successor, is therefore without jurisdiction, and the motion to dismiss must be sustained. Plaintiff excepts.