56 F. Supp. 885 | W.D. Ky. | 1944
On March 25, 1944, Robert Calhoun filed an action in the Lyon Quarterly Court of Kentucky against Gerald F. Baker in which he alleged that he was the owner and entitled to the possession of five hogs of the value of $80, that Baker had possession of the hogs- and was wrongfully detaining them from him to his damage in the sum of $25. He asked judgment for the recovery of the hogs and damages for their detention. Baker accepted service of summons on March 30, 1944. On April 10, 1944, Baker entered his special appearance to the action for the purpose of objecting to the jurisdiction of the Lyon Quarterly Court to entertain the suit against him by reason of the fact that he was Superintendent of the Kentucky Woodlands
It seems clear that the action of the Judge of the Lyon Quarterly Court in entering the judgment of April 10, 1944, without giving Baker an opportunity to-plead to the merits of the case after his. special appearance had been adjudged insufficient was erroneous. However, the-judgment is not void and can not be successfully attacked on that ground in this, proceeding. Civil Code of Practice of Ky. §§ 517, 518(3); Flinn v. Blakeman, 254 Ky. 416, 430, 71 S.W.2d 961. It follows, that this Court has no jurisdiction in the-matter unless the action was one whichi could be removed to the U.S. District Court, by proper removal proceedings and such proceedings were duly instituted. The attempted removal is apparently based upon, the provisions of Section 76, Title 28 U.S., C.A., which authorizes the removal of a. civil suit in any state court filed against, certain officers of the United States. However, this statute does not apply to all; officers of the United States. It is specifically limited by its terms to actions commenced in a state court against (1) any.
Plaintiff’s counsel refers in his brief to the existence of a federal question and to Section 71, Title 28 U.S.C.A., which is the statute dealing generally with the removal of suits from state courts to the U. S. District Court. But the existence of a federal question is not sufficient by itself to authorize removal under that statute. In addition to involving a federal question, it must also be one of which the District Courts of the United States have original jurisdiction. In such cases it is also necessary that the matter in controversy exceed the sum of $3,000. Sec. 41(1), Title 28 U.S.C.A.; Hague v. C. I. O. C., 307 U.S. 496, 507, 508, 59 S.Ct. 954, 83 L.Ed. 1423; Cooney v. Legg, D.C., 34 F.Supp. 531; Teeters v. Henton, D.C., 43 F.2d 175. The jurisdictional amount does not exist in this case. Plaintiff’s counsel cites in support of his contention the rulings in Steele v. Halligan, D.C., 229 F. 1011, Winters v. Drake, C.C., 102 F. 545, and Lester v. G. L. Tarlton Contractor, Inc., D.C., 45 F.Supp. 994. In Steele v. Halligan both the federal question and the jurisdictional amount existed. In Lester v. C. L. Tarlton, Contractor, the question discussed was the existence or non-existence of a federal question with the opinion indicating, without specifically stating, that the jurisdictional amount also existed. In Winters v. Drake the defendant was a receiver appointed by the federal court and accordingly included within the classification of officers authorized to remove causes to the district court by Sect. 76, Title 28 U.S.C.A., above referred to.
Plaintiff’s motion to dismiss for lack of jurisdiction is treated as a motion to remand to the state court and is sustained. Sect. 71, Title 28 U.S.C.A.