Mitchell v. Southern Railway Co., 23 Ga. App. 195

Mitchell v. Southern Railway Co.

23 Ga. App. 195 | Ga. Ct. App. | 1919

Wade, C. J.

In the case of Great Northern R. Co. v, Alexander, 246 U. S. 276 (38‘Sup. Ct. 237, 62 L. ed. 713), it was said: “It is, of course, familiar law, that, the right of removal being statutory, a suit commenced in a State court must remain there until cause is shown for its transfer under some act of Congress (Little York Gold-Washing & Water Co., v. Keyes, 96 U. S. 199, 24. L; ed. 666; Judicial Code, c. 3, §§ 28, 39 [36 Stat. 1094, 1099, c. 231, Comp. Stat. 1916, §§ 1010, 1021]). The allegation of the complaint that the deceased was- employed in interstate commerce when injured brought the ease within the scope of the Federal employers’ liability act [U. S. Comp. St. §§ 8657-8665], and it would have been removable either for diversity of citizenship or as a case arising under a law of the United States, except for the prohibition against removal contained in the amendment to the act, approved April 5, 1910 (36 Stat. 291, e. 143). - But'this allegation rendered the case, at «the time it was commenced, clearly not *197.removable on either ground. Kansas City Southern R. Co. v. Leslie, 238 U. S. 599 (59 L. ed 1478, 35 Sup. Ct. Rep. 844); Southern R. Co. v. Lloyd, 239 U. S. 496 (60 L. ed. 402, 36 Sup. Ct. Rep. 210). . . It is also settled that a case'arising under the laws of the TJriited Stgtes, non-removable on the complaint, when commenced, cannot be converted into a removable one by evidence of the defendant or by an order of the court upon any issue tried upon the merits, but that such conversion can only be accomplished by the voluntary amendment of his pleadings by the plaintiff, or, where the case is not removable because of joinder of defendants, by the voluntary dismissal or nonsuit by him of a party or of parties defendant. Kansas City Suburban Belt. Ry. Co. v. Herman, 187 U. S. 63 (47 L. ed. 76, 23 Sup. Ct. 24); Alabama G. S. R. Co. v. Thompson, 200 U. S. 206 (50 L. ed. 441, 26 Sup. Ct. 161, 4 Ann. Cas. 1147); Lathrop, S. & H. Co. v. Interior Constr. & Improv. Co. 215 U. S. 246 (54 L. ed. 177, 30 Sup. Ct. 76); American Car & Foundry Co. v. Kettlehake, 236 U. S. 311 (59 L. ed. 594. 35 Sup. Ct. 355). The obvious principle of these decisions is,- that, in the absence of a fraudulent purpose to defeat removal, the plaintiff may, by the allegations of his complaint, determine the status with respect to removability of a case arising under a law of the Hnited States, when it is commenced, and that this power to determine the removability of his case continues with the plaintiff throughout the litigation, so that -whether such a case, non-removable when commenced, shall afterwards become removable, depends not upon what the defendant may allege or prove, or what the court may, after hearing upon the merits, in invitum, order, but solely upon the form which the plaintiff by his voluntary action shall give to the pleadings in. the case as it progresses towards a conclusion. . . The plaintiff did not at any time admit that he had failed to prove the allegation that the ’ deceased was employed in interstate commerce when injured, and he did not amend his complaint, but, on the contrary, he has contended at every stage of the case, and in his brief in this court still contends, that the allegation -was supported by the evidence. The first holding to the contrary was by the State supreme court; and the most that can be said of that decision is that the defendant prevailed in a matter of defense which he had pleaded; but, as we have seen, this does not convert a non-removable case into *198a removable one, in the absence of voluntary action on the part of the plaintiff, and it therefore results that the defendant did not at any time.have the right to remove the case to the Federal court, which it claims was denied to it, and that therefore, there being no substance, in the claim of denial of Federal right, this court is without jurisdiction to review the decision of the Supreme Court of Montana, and the writ of error must be dismissed.”

It is not necessary to add anything further to the rulings stated in the headnotes.

Judgment reversed.

Jenkins and Luke, JJ., concur.