79 P. 655 | Kan. | 1905
The opinion of the court was delivered by
The firm of Stone & Bronnenberg brought an action against the Chicago, Rock Island & Pacific Railway Company to recover damages for unnecessary and unreasonable delay in delivering a shooting-gallery that was shipped from Independence, Kan., to El Reno, Okla., a part of the distance being over the line of the railway company. In their peti
It is conceded that there was the diversity of citizenship necessary to a removal, but the court ruled that the amount in controversy did not exceed $2000, and was, therefore, insufficient to give federal jurisdiction. The amendment of the petition was made before the application to remove was presented to, or ruled upon by, the court, but if the case was a removable one the right of removal was not affected by the amendment, nor by the ruling of the court denying it. It is the settled rule that the filing of the petition for a removal, accompanied by a legal and sufficient bond, operates to transfer a removable case from the state to the federal court. (25 U. S. St. at L. 433; 1 U. S. Comp. St. 1901, p. 508; Larson v. Cox, 39 Kan. 631, 18 Pac. 892; Rodman v. Railway Co., 65 id. 645, 70 Pac. 642, 59 L R. A. 704; Steamship Co. v. Tugman, 106 U. S. 118, 1 Sup. Ct. 58, 27 L. Ed. 87; 18 Encyc. Pl. & Pr. 347, and cases cited.) At that time the jurisdiction of the federal court attaches, and the state court may proceed no further.
The court, however, held that even under the original petition the amount in controversy was not sufficient to give federal jurisdiction. It was alleged that the damages sustained were $2249, and judgment for that amount was demanded, and in the petition for removal it was stated that the amount, or value, in controversy, exclusive of costs and interest, exceeded $2000. In actions for unliquidated damages the amount in controversy is ordinarily the amount claimed by plaintiff in good faith. The trial court based its ruling upon the theory that plaintiffs had overestimated their damages, and that it was apparent from the first count of their petition. In that count the damages were placed at $1363, and specific demand was made for that amount. Included in it were the damages for the loss of the use of the shooting-gallery while it was negligently withheld by the company, fixed at $1250, and the balance of the claim, $113, was for expenses incurred in tracing and trying to find the gallery. The court appears to have held that the $1250 item was $300 greater than plaintiffs were entitled to recover under the averments in their petition. In the body of the petition it was alleged that the gallery was received at the depot of the railway company on July 20, 1901; that plaintiffs inquired for it on July 22, and were told by the agent
In cases for the recovery of damages, where the law prescribes no limitation on the extent of the recovery, the determination of the amount of the recovery belongs to the court and jury trying the case. Any dispute of fact in respect to the amount must necessarily be tried by the federal, and not by the state court. In the first instance, the state court is called upon to decide whether the record and petition on their faces show a right of removal, including the fact whether there is the necessary amount in dispute to give jurisdiction ; but where there is a bona fide demand by the plaintiff for a recovery in excess of $2000, that ends the inquiry as to the amount in controversy in that court. The question of the amount in controversy is a .jurisdictional fact, and, outside of the prima facie case mentioned, must be determined in the federal court.
Looking beyond the specific demand of plaintiffs and into the averments of the petition, it is difficult to understand why it was legally impossible for plaintiffs to recover for the use of the gallery for more than
We think the claim made by plaintiffs in their original petition exceeded the amount necessary to give federal jurisdiction, and therefore the case was removed to .the federal court. That being true, the subsequent proceedings in the state court were without authority, and, therefore, the judgment of the district court refusing the removal must be reversed.