7 So. 2d 826 | Miss. | 1942
Lead Opinion
In November, 1939, Mrs. O.M. Villere, Sr., was killed as the result of a collision between an automobile in which she was traveling, with a freight truck belonging to Montgomery Atlanta Motor Freight Lines, Inc., appellant. An administrator of her estate was appointed, and brought this suit in Hancock County against the Freight Lines for her alleged wrongful death, and recovered judgment in the sum of $25,000, from which judgment the Freight Lines prosecuted this appeal. The collision and death took place in the State of Louisiana, therefore the rights of the parties are governed by the laws of that *219 state. Under the laws of Louisiana the sole right to receive the fruits of any recovery was in the husband of Mrs. Villere and her minor daughter, Ruth Villere. On plea in abatement by the Freight Lines they were substituted as plaintiffs; notwithstanding, the original style of the case was adhered to in making up the record for this court.
The Freight Lines is a Georgia corporation. Mrs. Frank Morris, a resident of Georgia, was appointed administratrix of her estate by the Chancery Court of Hancock County, and thereupon brought this suit. All the Villere family were resident citizens of Waveland, in Hancock County. Highway 90 runs between New Orleans and Mobile. Mrs. Villere and her son, O.L. Villere, were on their way to New Orleans in an automobile, the car being driven by her son. A truck and trailer of the Freight Lines was being driven by one Claxton, going east toward Mobile. The basis of the suit is the alleged negligence of the driver of the truck. Mrs. Villere was killed and her son received an injury, for which he sued and recovered a judgment for $2,800, which was appealed to this court, and reversed and remanded. M. A. Motor Freight Lines, Inc., v. Villere,
At the March term, 1940, the Freight Lines plead to the jurisdiction of the court, upon the ground that the *220 Freight Lines were engaged exclusively in interstate commerce, and that the injury and death having taken place in Louisiana, and a large number of the witnesses being residents of that state, and of Alabama and Georgia, for the state court to entertain jurisdiction would be an undue burden on interstate commerce, in violation of the commerce clause of the Federal Constitution, art. 1, sec. 8, cl. 3.
On this plea evidence was introduced, sustaining its allegations. The plea was overruled. After the disposal of this plea Mrs. Morris, the administratrix, was granted leave, upon her application, to amend the declaration, which was done. The only change was the husband and children of Mrs. Villere were made parties plaintiff, with the administratrix.
Thereupon the Freight Lines filed the first petition and bond to remove the case to the Federal court, which petition was granted at the September term, 1940. In March, 1941, the Federal court remanded the case to the Circuit Court of Hancock County. After it had gone back, and at the September term, 1941, upon a plea in abatement by the Freight Lines, the cause was dismissed as to the administratrix and O.L. Villere, Jr., and M.R. Villere, leaving as plaintiffs the husband of Mrs. Villere and their fifteen-year-old daughter. It is not questioned here that under the laws of Louisiana they alone were entitled to any amount that might be recovered. After the trial had reached this point, the Freight Lines made the second application, and gave the required bond to remove the case to the Federal court, which was overruled. Thereupon the trial proceeded, resulting in the judgment appealed from.
It will be observed that when this suit was originally brought the only plaintiff, Mrs. Morris, administratrix, was a resident citizen of the State of Georgia, and the Freight Lines were a corporation of that state. Therefore, there was no diversity of citizenship, and no right *221 of removal to the Federal court, if the administratrix had the right to sue.
Section 71 (Judicial Code, section 28 amended) U.S.C.A., title 28, provides, among other things, for the removal of causes from the state courts to the Federal courts, on the ground of diversity of citizenship. Section 72 of that statute provides, however, that the application to remove must be made, "at the time, or any time before the defendant is required by the laws of the State or the rule of the State court in which such suit is brought to answer or plead to the declaration or complaint."
The plaintiffs, in effect, concede that the Freight Lines had the right to remove the cause at this juncture, except for the fact that it had plead to the cause before making the application. In other words, that the application was barred because of the delay in making it. On the other hand, the Freight Lines contend that they were justified in the delay for the following reasons: When the suit was first brought the case of Mississippi Power Co. v. Archibald,
In this case such diversity was not shown until the administrator was eliminated as a party plaintiff. Although the delay in the dismissal as to the administrator may be chargeable to both the plaintiffs and the defendant, nevertheless, both sides, of course, acted in good faith. We think this was enough to justify the delay. Footnote 96, 28 U.S.C.A., sec. 72, in part is in this language:
"Substitution of new plaintiff. — Substitution of a new party plaintiff may extend the time within which the petition for removal may be filed, for such substitution may for the first time create a diversity of ctizenship."
And section 1057, Simkins Fed. Prac. (3 Ed.), is in this language: "When Right of Removal Arises after the Time Fixed by Statute. Sometimes the right of removal does not exist at the time when by the State law the answer is to be filed, but may arise in the subsequent proceedings in the State court, as where the amended *223 petition first discloses the right to remove, or when by change of parties, by dismissal or otherwise, the controversy for the first time becomes one wholly between citizens of different states; or when the original petition in the State court is for an amount not in excess of $3,000, but plaintiff by amendment greatly increases the claim so as to bring it within Federal jurisdiction; or where by amendment the cause of action is made to depend on a Federal question not appearing in the original petition; but the amendment must, in effect, state a new cause of action.
"If any of the events happen as above stated, a motion to remove to the Federal court, promptly made, should be sustained, and therefore a motion to remand when a motion is made under these conditions will not be sustained.
"In determining the promptness with which a motion to remove is made, time must be calculated from the filing of the amended petition."
Reversed and remanded, and the lower court directed to enter an order removing the cause to the Federal court.
Concurrence Opinion
In Mississippi Power Co. v. Archibald,
Let us suppose that when in obedience to that mandate the case reached the Federal court, the Federal district judge had said, as he did say in Thames v. State, 5 Cir.,
What then should the state court have done had the Archibald case been remanded by the Federal court? The State Supreme Court had said that state courts in the face of the federal right of removal would not be open to plaintiff litigants who had taken the course pursued by them in the Archibald case, which precisely was the course pursued in the present case. It would be the manifest duty of the state court to maintain the attitude taken by the highest court thereof, and to close doors to the case until the plaintiffs had taken a nonsuit and *229 brought their suit with the proper parties as plaintiffs and thereupon freed the situation from the attitude in which the plaintiffs had entangled it in their original efforts to defeat the removability. And if it be said that this would present something which may be termed unseemingly, the state courts could well and truly say that the responsibility therefor has not been with them.
Dissenting Opinion
Under the Federal Removal Statute, when a Federal District Court remands to the state court a case removed to it from that court, its order remanding the case is binding upon the state court, and it is without the right to again remove the case to the Federal court, and an order so doing will be erroneous unless "between the filing of the first petition for removal and the second, there had been any [a] change in the situation, presenting the right of removal upon a better ground than that which was overruled by the United States circuit [now district] court when it remanded the cause." McLaughlin Bros. v. Hallowell,
"Here, petitioner attempted to remove the cause, as he had a right to do, even though the state court had denied his petition for removal. The federal court held it was not removable as a separable controversy and remanded it to the state court. For the reasons already stated, we are not at liberty to review the remand order. Consequently, we must assume, so far as this case is concerned, that the suit was not removable." See, also, the many cases bearing hereon cited in the Annotation to Moulding-Brownell Corp. v. Sullivan, 114 A.L.R., beginning at *1476.
The diversity of citizenship here claimed as a ground for the removal of the case to the Federal court appeared when it was removed thereto and remanded therefrom, Mississippi Power Co. v. Archibald,
What I have said herein has no bearing, of course, on an order of a state court overruling a petition for the removal of a cause to a Federal court where the cause had not prior thereto been so removed and remanded to the state court by the Federal court. I have left out of view and express no opinion on the effect, on the appellant's right to a second removal of the case to the Federal court, of the pleas and demurrer filed herein by the appellant in the court below after the case was remanded to it by the Federal court and before the second petition for removal to the Federal court was filed.
Alexander, J., concurs in this dissent.
Addendum
The United States District Court refused to entertain jurisdiction and remanded the case back to the state court *224
on the ground that the application for removal came too late — after the defendant had pleaded. Under the facts of this case he was clearly wrong about that. On a proper showing for the delay in making the application to remove before pleading, the application should be granted. Jifkins v. Sweetzer,
Section 71, Title 28, U.S.C.A., prescribes what causes are removable from the state courts to the Federal District Courts, and provides further as follows: "Whenever any cause shall be removed from any State court into any district court of the United States, and the district court shall decide that the cause was improperly removed, and order the same to be remanded to the State court from whence it came, such remand shall be immediately carried into execution, and no appeal or writ of error from the decision of the district court so remanding such cause shall be allowed." That provision means nothing more than that there is no appeal to the Federal higher courts from the Federal District Courts remanding the case to the state courts. It does not mean that the question of jurisdiction is foreclosed. Metropolitan Casualty Ins. Co. v. Stevens,
"When a petition for removal to a federal court is denied by the state court, the petitioner may do one of three things. He may object to the ruling, save an exception, and litigate the cause in the state courts. Iowa Central Ry. Co. v. Bacon, supra [
"If the petitioner litigates the cause in the state court and preserves an exception, he may have the order of the state court denying his petition for removal reviewed in the state appellate court. In proper cases he may come here asserting a denial of his right of removal. Iowa Central Ry. Co. v. Bacon, supra; Stone v. South Carolina, supra; Removal Cases, supra. If he removes the cause to the federal district court despite the state court ruling and the federal court assumes jurisdiction over the objection of his adversary, the latter, after final judgment, may contest this assumption of jurisdiction in the circuit court of appeals, and in this court in proper cases. Powers v. Chesapeake Ohio Ry. Co.,
In the Gordon case the state court refused to transfer to the Federal court from the state court. The cause went on through the highest court of the state to the U.S. Supreme Court, the latter reversed the trial court and the Supreme Court of the state, and provided that the mandate should be sent back to the Supreme Court of the state, directing it to send the cause back to the trial court with directions to transfer it to the Federal court. In that case if the Federal court had refused to take jurisdiction the defendant would have had the right to appeal to the highest Federal courts. And if the cause had been transferred to the Federal court and by that court remanded to the state court, there would have been no appeal from the decision of the Federal court so remanding; but if it had been carried on through the state courts to the Supreme Court of the United States, and that court had held that it was a removable cause, then the Federal District Court would have no right to remand it again. That would have settled that question, and if the Federal court had again remanded it to the state court there would have been a right of appeal to the higher Federal courts. Where a federal question is involved the state courts in passing on it are Federal courts in addition to being state courts, and their decisions are reviewable by the Supreme Court of the United States; and the state courts are bound by its judgments. Take this case; if this court reverses the judgment on the ground that the federal court had no right to remand it to the state court, then the Federal court would be barred from again remanding it to the state court. However, it would still have the power to dismiss the cause for want of jurisdiction, which would be a final judgment appealable by the defendants to the highest Federal courts. In other words, the language of the Federal statute copied above was not intended *227 to, and does not, deprive the Federal courts of jurisdiction in any cause of which it rightfully had jurisdiction under the law. The contrary view would mean that Federal District Courts would have the right to finally determine the question as to what cases are removable from the state courts to the Federal courts. Putting it differently, it would have the power to remand all cases back to the state courts which had been transferred to it by the latter courts, regardless of whether they are removable or not, and thereby deprive the defendants of their rights to resort to the Federal courts.
When that is done the state courts must try it. From the judgment rendered there the aggrieved party may go on up through the highest court of the state, and to the Supreme Court of the United States, if necessary, to test the question of whether the cause was removable. If the result is a judgment that it was removable, a mandate goes down to the state trial court directing it again to remove the cause to the Federal court; and when that is done the Federal court must take jurisdiction. From the judgment there the party aggrieved may go on up to the highest Federal courts to vindicate his position.
Overruled.