206 F. 688 | W.D. Okla. | 1913
The facts in the case are as follows:
Laura Chappell, the plaintiff in case 1,074, on August 9, 1912, -filed her petition against the Missouri, Kansas & Texas Railway Company in the district court of Oklahoma county, state of Oklahoma, alleging, among other things, “that she is a resident of Oklahoma county, state of Oklahoma.” The pleadings show that on October 22, 1911, she purchased a first-class ticket over defendant’s line from Guthrie, Okl., to Oklahoma City, Okl. She was accompanied by five children, as to two of whom the conductor demanded the payment of fare. • .Plaintiff offered to pay for one of these as being the only one over five years of age, but the conductor refused to accept passage for the party upon such terms, and ordered her off the train at a station called Fallas. It is claimed that no one offered to help her off the train, and that in alighting she sprained her ankle, misplacing the socket in some' iway, and that, being a stranger in the place, she found difficulty in securing accommodations, and was obliged to go a distance of more than a mile to secure shelter for the night for herself and her children, and was .obliged to make a similar trip the next morning to the depot,. from which fact and by reason of the inclemency of the weather .she-was subjected to exposure and contracted cold, and one of the children pneumonia. Upon returning to the train the following morning she was given passage upon the same terms which, it is alleged, .were declined the day before. The allegation is that the conduct of -so. much
The original petition as filed claimed $1,900 actual damage and $1,000 exemplary damages, and thus a total of $2,900, for which judgment was asked. * The summons issued on August 9, 1912, requiring the defendant company to answer on or before September 10, 1912. Service was made on August 12, 1912, and the summons returned served August 14, 1912. On September 9, 1912, and thus within the time provided for answer, the defendant company filed with the clerk of said court its petition for removal, together with a bond. The bond bears an endorsement of approval by the clerk on September 9, 1912, the same day upon which it was filed. Ofi September 7, 1912, a copy of the petition for removal was served on plaintiff’s counsel, together with a notice that it wrould be presented to the state court on September 9, 1912. It is alleged that the petition was presented on the date just named to the state judge, and taken under advisement by him until September 26, 1912. On September 26, 1912, plaintiff presented to the state judge a motion to reduce the claim to $1,950 by interlineation. This motion was sustained by the court over the defendant’s exception, and the petition amended so that the actual damages claimed wrnre in the sum of $1,500, and the exemplary damages in the sum of $450, making the total of $1,950, above stated. Thereupon, and on the same day, September 26, 1912, the petition for removal was taken up by the court and denied over defendant’s exception. On September 27, 1912, the case was further called by the state court, and the defendant adjudged in default. On October 1, 1912, the defendant filed in this court a transcript of the proceedings in the state court On October 12, 1912, the defendant appeared in the state court under protest and asked for an order setting aside the default', which motion was on the same day denied.
Thereupon, on October 19, 1912, defendant brought its bill in equity in this court, being No. 1,084, alleging that plaintiff was threatening to proceed with the case in the state court, to restrain the plaintiff, Chappell, and her counsel, and the sheriff of Oklahoma county, state of Oklahoma, from proceeding further under case No. 1,074, being case No. 12,520 in the state court. Case No. 1,084 is pending at the present time upon demurrer, and case 1,074 upon certain motions to amend the petition for removal, to be presently considered.
‘ It is definitely settled by decisions of the Supreme Court of the United States in a long line of cases — latest of which is Madison Traction Company v. St. Bernard Mining Co., 196 U. S. 239, 25 Sup. Ct. 251, 49 L. Ed. 462, and among the clearest of which are Railroad v. Dunn, 122 U. S. 513, 7 Sup. Ct. 1262, 30 L. Ed. 1159, Cameron v. Hodges, 127 U. S. 322, 8 Sup. Ct. 1154, 32 L. Ed. 132, Crehore v. Railway Co., 131 U. S. 240, 9 Sup. Ct. 692, 33 L. Ed. 144, and Powers v. Railway Co., 169 U. S. 92, 18 Sup. Ct. 264, 42 L. Ed. 673 — as follows ;
Bearing these rules in mind, we come to the grounds of demurrer urged against the bill to restrain further proceedings in the state court. It is urged first against this injunction'suit that it is in effect a suit to restrain proceedings in a state court, and thus precluded by Revised Statutes, § 720, forbidding a federal court from enjoining proceedings in a state court. Paragraph (2) above, however, is conclusive as against this contention. See, also, Donovan v. Wells, Fargo & Co., 169 Fed. 363, 94 C. C. A. 609, 22 L. R. A. (N. S.) 1250.
The case therefore turns, after all, upon whether or not there was filed in the state court on September 9, 1912, the proper petition for rimoval and bond. If these were in due form, the power of the state court ceased, its further proceedings in the case were of no effect, and a bill to restrain the plaintiff in that case from prosecuting it further is well brought. This brings us to the reasons which it is claimed caused the state court to proceed further with the cause, notwithstanding the previous filing of the petition and bond for removal. It was asserted upon the argument, and is now reasserted as a ground for this demurrer, that the state court declined to entertain the removal proceedings for the reasons, first, that the petition for removal was not in due form; second, because the necessary jurisdictional amount was not involved; and, third, because the bond tendered was not conditioned as required by law.
If these positions taken by the state court were proper, then, of course, that court was justified in not surrendering jurisdiction, and the present suit to enjoin those proceedings may not be maintained. This involves the consideration of the several criticisms upon the removal proceedings.
"Your petitioner further slates that in said cause there is a controversy between the plaintiff, Laura Chappell, who, as appears from her petition, at the time of the commencement of said suit was, and ever since has been, and now is, a citizen and resident of the Western district of the state of Oklahoma, and this defendant, who is a citizen and resident of another state, as foi-*694 lows, to 'Wit: ' Át tlie time of the filing or institution of this suit, and ever since, £he defendant, Missouri, Kansas & Texas Railway Company, was anjl is a corporation organized and existing under and by virtue of the laws, of' the state of Kansas, and that there are no other parties to this suit.”
It is contended that this averment is insufficient, in that it does not allege any facts, but states the mere allegation that the petition showed ce'rtain facts. This view of the petition, however, seems too restricted. It is,' in my judgment, a clear allegation of the citizenship of the respective parties. True, there is the expression “as appears from her petition,” and' true, a reference to the petition simply shows an allegation of residence at the date the petition was originally filed in the state court. The- reference to the petition, therefore, is to that extent in support of the petition for removal. • That it does not fully sustain it does not detract from the direct assertion of the petition for removal as to the citizenship of plaintiff. The reference to plaintiff’s petition is purely parenthetical, and does not destroy the legal effect of the' rest of the pleading. If, however, it leads to some obscurity in the latter, it is a matter that may be corrected by amendment.
I-do not concur in this view. Even assuming the Judicial Code tó be
It is said, however, that the record as presented to the state court did not justify removal, for the reason that, even assuming $2,000 to be a sufficient jurisdictional amount by reason of the cause of action having arisen prior to January 1, 1912, the record fails to show $2,000 involved. There is a direct averment in the petition for removal that more than $2,000 is involved, but it is claimed that this is overcome by an examination of plaintiff’s complaint itself. An examination of plaintiff’s complaint in its original form, it is said, does not show a suit for over $2,000 for the reason that the $1,000 mentioned as exemplary damages is, it is urged, set forth only in the prayer to the complaint, and, the prayer being no part of the complaint, the-latter must be viewed as if no exemplary damages were asked. The complaint, however, as has been above outlined, contains an express alle7 gation that the acts of the conductor and auditor of the train were reckless, willful and malicious, and also alleges that plaintiff “is entitled to receive and recover exemplary damages in this action in the sum of $1,000.” This would seem to be a sufficient averment of exemplary damages as a matter of recovery, so as to place the case beyond the rule that the prayer is no part of the complaint.
It is said, however, that even if exemplary damages be deemed alleged and prayed for, such allegations are insufficient and subject .’to demurrer, and that, therefore, this item in the complaint, unauthorized by law, does not make up the jurisdictional amount, hut leaves the complaint standing upon the sum of $1,900, originally claimed • as acr tual damages. A comparison of the allegations of the complaint with
“The case is not one of colorably enlarging a demand for the purpose of giving jurisdiction to the courts'of the United States, for the plaintiff could not have entertained any such purpose.”
Plaintiff occupies an anomalous position in asserting exemplary damages in the state court, and yet at the same moment seeking to avoid the effect of such assertion upon the question of removal by the statement that such exemplar}'- damages so sought are not recoverable. The usual course in judicial procedure is for an attack upon one’s pleading and claim to come from the opposite party, not from the party himself. Henderson v. Cabell (C. C.) 43 Fed. 257; Johnson v. Computing Scale Co. (C. C.) 139 Fed. 339.
It is also said that, notwithstanding all the foregoing, the complaint, as passed on by the state court, did not, even including exemplary; damages, claim as much as $2,000, for the reason that upon September 26, Í912, and thus after the petition for removal had been filed, but apparently before it had been taken up by the court, an amendment was allowed reducing the amount claimed to $1,950. Of course, however, this amendment could not affect the right of removal. This was to be judged by the allegations as they stood upon the filing of the petition and bond. If these latter were sufficient, it was the duty of the court under the express terms of the statute to proceed no further. It could not defeat the statute by an -after-allowed amendment.
This brings us to the controlling question affecting the petition for removal, which is whether, even if, as we have held, the record showed a claim for over $2,000, upon the requisite diversity of citizenship, upon a cause of action arising prior to January 1/ 1912, such circumstances justified a removal in September, 1912. The plaintiff Chap-pell contends that the Judicial Code, which went into effect January 1, 1912, increased the amount necessary to an original suit, and thus nece,ssary to removal, to $3,000. The railroad company contends that the Code is without effect as to causes of action arising prior to January 1, 1912. By section 291 of the Judicial Code it is provided that:
“Wherever, in any law not embraced' within this act, any reference is made to, or any power or .duty is conferred or imposed upon, ■ the Circuit Courts, such reference shall, upon the taking effect of this act, be deemed and held to refer to, and to confer such power and impose such duty upon, the District Courts.” . ,
The effect of this last section is to transfer to the District Court all powers' possessed by the Circuit Courts, and among such was the power to deal with the present Cause of1 action, which, accruing prior to
^Section 299 of the judicial Code is as follows :
'■The repeal of existing laws, or the amendments thereof, embraced in this act, shall not affect any act done, or any right accruing or accrued, or any suit or proceeding, including those pending on writ of error, appeal, certificate, or writ of certiorari, in any appellate court referred to or included within, the provisions of this act, pending at the time of the taking effect of this act, but all such suits and proceedings, and suits and proceedings for causes arising or acts done prior to such date, may be commenced and prosecuted wifhin ihe same time, and with the same effect, as if said repeal or amendments had not been made.”
The section just quoted provides, it will be noted, that the Code shall not “affect * * * any right accruing or accrued,” and further provides that “suits and proceedings for causes. arising, or acts done, prior to such date”- — i. e., of the taking effect of the act — may be commenced and prosecuted “'within the same time, and with the ¿ame effect,” as if the Code had not Been passed. Is removal a right protected by this saving section, and one which, by its terms, is not to be affected by the enactment of the Code? Certainly the right to remove is valuable. While not inhering in ihc original cause of action, it is yet a highly important privilege connected with tile procedure. It is not a vested or constitutional right. It may be taken away ‘by legislative act. Equally by legislative act it may be retained. Rut was not the language of section 299 designed to that very end? That section says that rights and suits to protect such rights shall be prosecuted “with like effect” as if the Code had not passed. Does not this protect removals as an incident to the prosecution of such suits? It would so seem. A more definite indication of the will of Congress at least is necessary to lead to the view that Congress intended, to .deprive litigants of the privilege of removal given them as to causes of action existing prior to the taking effect of , the Judicial Code.1
The expressions in Washington Home for Incurables v. American Security & Trust Co., 224 U. S. 486, 32 Sup. Ct. 554, 56 L. Ed. 854, in dealing with the question of appeals in the District of Columbia, cited for plaintiff, are not so clearly in point as to lead to a conclusion other than that here reached. On the other, hand, the uniform opinion of other District Courts, upon what impress me as sufficient premises, has been to the effect that the provision contained in section 299 was sufficiently broad to preserve the privilege of removal as to causes of action arising prior to the taking effect of the Code. In Dallyn v. Brady (D. C.) 197 Fed. 494, it was held by Judge Witater that section 299 had the effect to permit a party to institute an action in the District Court after January 1, 1912, where the right of action in the Circuit Court arose and was complete prior to that date, and where the amount was between $2,000 and $3,000. Likewise Judge You-; mans, in Taylor v. Midland Valley R. R. Co. (D. C.) 197 Fed. 323, held that the phrase “with the same effect,” as used in section 299 of the Judicial Code, meant “with the same result or with the same consequences,” and that thereunder it was the intention of Congress to leave a cause of action arising prior to January 1, 1912, subject to the same
Reliance is placed b)1, the defendant railroad upon Chase v. Erhardt (D. C.) 198 Fed. 305, as establishing a different rule. In that case, as in a number of others which might be cited — among them Deford Co. v. Mehaffy (C. C.) 13 Fed. 481, and Harris v. Delaware Co. (C. C.) 18 Fed. 833 — there was a motion to remand for a defective bond, and against this motion was a counter motion to be allowed to file a good bond to supply the defect. The court held in these cases that the form of the bond was not a jurisdictional matter, but one of procedure, and declined to remand, but upon terms that a proper bond be,filed within a stated time. Here, however, the question is not one of amendment. nor whether another bond may be filed; that is not asked here, nor was it asked of the state court. The railroad stood there, -as it stands here, upon the bond originally tendered. The present question is whether the state court upon the bond tendered was called upon “to proceed no further.” The correct answer in my judgment to this is in the negative.
It follows, therefore, that the suit as brought in the state court continued there, notwithstanding the attempted removal, because of the absence of the statutory bond. It follows that the state court acted within its powers in proceeding to award a default judgment. Tt results that this court cannot properly arrest by injunction the action of the parties in pursuing their remedies in the state court. The demurrer to the bill must accordingly be sustained, and an order will be entered for its dismissal.
Under this view of the matter case No. 1,074, in which the removal has been attempted, has been improperly docketed. It is unnecessary.
