6 F. 654 | U.S. Circuit Court for the District of Eastern Missouri | 1881
The plaintiff, an Ohio corporation, brought suit in the state circuit court for less than $300, the defendants being citizens of Missouri. The defendants appeared (February 8th) and filed an answer and counter claim. The counter claim is based on an alleged contract in writing, for the non-performance of which the defendants have sustained damages (unliquidated) in the sum of $1,000. No written contract was filed, or profart thereof made. On the following day the defendants filed a petition for the removal of the cause to this court. Under the act of March 3, 1875, the defendants, though citizens of Missouri, had a right to the removal, the plaintiff being a
An important inquiry in this case arises under section 6 of said act, viz.: “That the circuit court of the United-States
Hence, it seems that the first inquiry, on proper motion, is to ascertain whether on the papers, as transmitted to this court, it will remand, sustain a motion to dismiss the counter claim, or will permit the defendants here to do what should have been done in the state court. Under the later rulings of the Missouri supreme court the counter claim is subject to dismissal on motion. If such a motion is made and granted, the ease will have to be remanded. The anomalous position the case will then occupy in tho state court cannot be avoided.
The judgment of this court for dismissal of counter claim, if its j urisdiction is to be thus determined, may or may not prevent the state court from allowing the same to be re-in
While the practice acts of tbe state may prevail as to pleadings, etc., under tbe United States act of 1872 they cannot enlarge or change tbe United States acts concerning removal of causes from state courts. Tbe amount in dispute still continues to be what plaintiff claims, and not what by counter claim tbe defendant may demand.
Motion to remand sustained.
Reported in 4 Fed. Kkj?. 257.