35 F. 170 | U.S. Circuit Court for the District of West Virginia | 1888
(orally.) The bill filed in this cause by the Baltimore & Ohio Railroad Company shows that on the 24th day of April, 1880, Francis M. Ford, administrator of the estate of Joseph M. Ashby, deceased, commenced a suit in the circuit court of Preston county, in the state ,of West Virginia, against this plaintiff, claiming damages $5,000; that afterwards, on the 8d day of June, 1881, the Baltimore & Ohio Company, before a final trial of the same, filed a petition in the circuit court of Preston county, accompanied wdth the proper bond, praying for the íemovál of the said cause from that court into the circuit court of the United. States for this district; that on the 2d day of August, 1881, it filed in this court a copy of the record of the said suit, including all of the proceedings, as required by the act of congress, transferring-the said suit from the state court into the United States court; that after the cause had been transferred to this court, the plaintiff, by his counsel, appeared from time to time, and upon two different occasions argued demurrers filed to the original and amended declarations, both of which demurrers were sustained, and an order was entered on the hearing of the second demurrer to the amended declaration dismissing the suit, and giving the
As to the question whether the Baltimore & Ohio Railroad Company is a foreign or domestic corporation, this court has so often held that it is a foreign corporation, and as such entitled to sue in the United States court, that it is no longer considered an open question. Railroad Co. v. Supervisors, not reported; County Court v. Railroad Co., ante, 161; Railroad Co. v. Harris, 12 Wall. 65; Railroad Co. v. Koontz, 104 U. S. 5; Goodlett v. Railroad Co., 122 U. S. 391 et seq., 7 Sup. Ct. Rep. 1254. It is suggested in the answer that no action was taken by the circuit court of Preston county upon the petition and bond filed in that court by the Baltimore & Ohio Company, for the removal of the cause. In this connection it is claimed'that, after the removal upon the part of the Baltimore & Ohio Company, its counsel appeared, from time to time, in the stale court, and made motions in the ease, among others, to continue it, and that for this reason it waived its right to be heard in this court. It was not important, nor was it necessary, for that court to act upon the petition and bond if it did not feel inclined to do so. Neither a want of action upon the part of that court, nor its refusal to remove the case, would divest this court of jurisdiction. Whenever the proper petition and bond were filed pursuant to the act of congress, that court lost its
The next question raised by the answer is that the petition was not filed, under section 3 of the act of 1875, within the time prescribed by the act, before or at the term at which the case could be first tried. The record at law in this case, and which is filed as an exhibit, shows that, at the first term that this case came upon the docket of the state court, it stood upon a writ of inquiry, and no action of the court was asked for by either party. At the next term of the court, when the case was first called for. trial, the petition and bond under the act of congress were filed. In the view the court takes of this case it is unnecessary to decide whether the case was triable or not at the term that it came upon the docket, upon the writ of inquiry, under the statutes of this state, for the reason that the record discloses that, after the case was transferred to the United States court, the plaintiff in that action appeared in that court, and did not suggest to it that the time had elapsed when the case could be properly removed, nor did he move to remand the case to the state court, but instead of that he demanded a trial in the United States court, and, upon a demurrer to his declaration, which was fully argued by counsel for both plaintiff and defendant, and considered by the court, the demurrer was sustained, after which the plaintiff took leave to amend his declaration, and, in pursuance of the leave granted him, filed in the court an amended declaration, to which the defendant demurred, and which was fully argued by counsel of both the plaintiff and defendant, and again the court upon consideration sustained the demurrer, and entered an order dismissing the case upon the ground that the. declaration
Having thus disposed of the questions raised by the pleadings in the case, we are asked to enjoin the plaintiff in the action at law from further prosecuting his suit in the state court, from which the case was removed. As we have seen, the case was properly removed from the state court into the federal court, and, when removed, the jurisdiction of the state court terminated, and the federal court alone had exclusive jurisdiction. Any proposed action by the plaintiff in that court would, under the removal act, bo illegal and void. Wo are therefore of opiuion, under the authority of French v. Hay, 22 Wall. 250, as also under the authority of the case of Dietzsch v. Huidekoper, 103 U. S. 494, to grant the reiief prayed for. A decree will bo passed refusiug to dissolve the injunction, but perpetuating it, restraining and inhibiting Francis M. Ford, administrator of the estate of Joseph M. Ashby, deceased, the defendant in this cause, and the plaintiff in the action at law, his agents, attorneys, or servants, from the further prosecution of the suit at law in the circuit court of the county of Preston in this state.
See Larson v. Cox, (Kan.) 18 Pac. Rep. —, and note.