Wabash R. v. Barbour, 73 F. 513

Wabash R. v. Barbour

73 F. 513 | 6th Cir. | 1896

TAFT, Circuit Judge,

after stating the facts as above, delivered the opinion of the court.

We are very loath to rule with the defendant in this case, and reverse the judgment, which, on the merits of the case, is clearly a just-one. We are especially reluctant to do this when we must do it in favor of the party which first sought the federal jurisdiction, and now seeks to avail itself of the benefit oí an error into which it urged the court below. We are not, however, able to discover any theory upon which the jurisdiction of the court below can be sustained, in view of the decisions of the supreme court of the United States. In Tennessee v. Union & Planters’ Bank, 152 U. S. 434, 14 Sup. Ct. 654, it was held that:

“Under Act Aug. IB, 1888, e. 8(5(5, the circuit court of the United States lias no jurisdiction, either oiiginal, or by removal from a state court, of a suit, as one arising under the constitution, laws, or treaties of the United States, unless that appears by the plaintiff’s statement of his own claim.”

This view has been affirmed, by the same court in Chappell v. Waterworth, 155 U. S. 102, 15 Sup. Ct. 34; Postal Telegraph Cable Co. v. Alabama, 155 U. S. 482, 15 Sup. Ct. 192; and Land Co. v. Brown, 155U. S. 488, 15 Hup. Ct. 357.

Under these cases, no statement in a petition for removal can supply the absence of averments, in the plaintiff’s statement of his own claim, showing that the case involves a federal question. In the case at bar, the plaintiff did not make, in his declaration, the slightest suggestion from which it could be inferred that there was a federal question involved in the consideration and decision of the cause of action which he set out. It w-as not until the petition for *516removal was filed that the possibility that a federal question might arise on the trial appeared. Hence the court below had no jurisdiction. Nor is it material that the removal was caused by the party now complaining of it. It is well settled, by decisions of the supreme court, and on principle, that the party improperly removing the case from the state court may assign as error the want of jurisdiction over the subject-matter of the court to which the removal has been had. Martin’s Adm’r v. Railroad Co., 151 U. S. 674-690, 14 Sup. Ct. 533; Railway Co. v. Swan, 111 U. S. 379-382, 4 Sup. Ct. 510; Capron v. Van Noorden, 2 Cranch, 126; Brown v. Keene, 8 Pet. 112. The defect in jurisdiction here is not merely modal, like the time within which a petition for removal is to be filed, but it goes to the substance of the jurisdiction.

The judgment of the circuit court is reversed, with directions to remand the case to the circuit court of Wayne county, Mich. The costs of this court, and the costs of the circuit court, and of the trial had therein, will all be taxed to the Wabash Railroad Company.