55 S.E. 765 | S.C. | 1906
October 27, 1906. The opinion of the Court was delivered by The plaintiff commenced action in the Court of Common Pleas for Charleston County on September 6, 1902, to recover $10,000 damages for personal injury alleged to have been suffered by him through defendant's negligence. On September 19, 1902, a petition and bond for removal on the ground of diverse citizenship was duly filed and accepted and subsequently the cause was actually transferred to the United States Circuit Court for South Carolina. On April 21, 1903, the United States Court, on motion of plaintiff's attorney, passed an order discontinuing the cause on payment of costs. After payment of the costs plaintiff, on April 24, 1903, upon new summons and complaint brought this suit in the Court of Common Pleas for Charleston County upon the same cause of action except that the damages were laid in the sum of $2,000.
The defendant answered and the case was submitted to a jury at November Term, 1904, and resulted in a mistrial.
Thereafter, in March, 1905, defendant on notice moved before Judge Memminger to dismiss all the proceedings in the cause on the ground that the Court had no jurisdiction thereof and that the jurisdiction of said cause is vested exclusively *328
in the United States Court. Judge Memminger granted the motion and dismissed the case for want of jurisdiction upon the rule and reasoning stated in Baltimore andOhio R.R. Co. v. Fulton,
The Supreme Court of Georgia, however, in the case ofMcIver v. Florida etc. R.R. Co.,
The Supreme Court of Georgia further declares: "The act of Congress provides that certain cases may be removed from the State Court to the Federal Court, but this does not mean that the cause of action is removed. The act refers in terms to suit and not cause of action. Until the State Court is absolutely deprived of jurisdiction of a particular cause of action, it may take jurisdiction of and pass upon the same, with the exceptions above noted, that when the Federal Court has taken jurisdiction the State Court cannot take any action in connection with the same so long as the cause is pending in the Federal Court. But when that Court denies to the plaintiff a hearing, or fails for any reason to pass upon the sufficiency of his cause of action, he may bring the same again in the State Court and invoke an adjudication of that Court. And the fact that the new suit is for an amount which will prevent another removal to the Federal Court will not invalidate the suit. If the plaintiff in the new suit voluntarily abandon a portion of his claim for damages, it does not seem that the defendant should complain. The policy of the laws of the United States is to compel persons having claims of small amounts to litigate in the State Courts, and voluntarily giving up a portion of his claim for damages and being content to accept a sum less than the Federal Court would entertain jurisdiction of, would not seem to be contrary to the laws of the United States and its established public policy in reference to the jurisdiction of its Courts."
The rule declared in the Georgia case and the reasoning by which it is supported appear to us to be correct. The Ohio case, so far as our investigation develops, is the only precedent in support of the view of the Circuit Court, while, on the other hand, several authorities besides the Georgia Court support the contrary view. Hooper v. Atlanta etc.R.R. Co.,
Our attention has not been called to any decision of the United States Supreme Court which is decisive as to this question and we have discovered no such case. In the case of Bush v. Kentucky,
In reaching our conclusion we are mindful of the rule established in the United States Supreme Court, that the jurisdiction of a Federal Court acquired on removal from a State Court cannot be ousted or divested by any change of conditions — that is, conditions in the pending suit, as, for example, when the parties become residents of the same State after removal to the Federal Court on the ground of diverse citizenship — Morgan v. Morgan, 2 Wheat., 290; Clark v.Mathewson, 12 Pet., 165; or, after the right of removal attached, an amendment in the State Court allowing plaintiff *332
to reduce the matter in dispute to less than the jurisdictional amount — Kanouse v. Martin, 15 How., 198; or when there is a change in the value of the subject of controversy after jurisdiction acquired — Cooke v. United States, 2 Wall., 218; or by dismissal of the original bill involving the jurisdictional amount after the filing of a cross bill which did not involve the jurisdictional amount — Kirby v. American SodaFountain Co.,
It is not contended by respondent in this case that the order of discontinuance, not having therein the words "without prejudice," must be treated as a final adjudication so as to prevent a new suit in any Court, as the case of Dunham v.Carson,
It is contended that the word "cause" means more than "suit," that it means "cause of action," and that the cause of action is taken entirely out of the jurisdiction of the State Court and that the Federal Court alone had jurisdiction *333 thereof. We cannot accept this construction. The words "suit" and "cause" mean the same thing in the statute. In common usage and very often in statutes and decrees, the words suit, action, case and cause are used interchangeably to indicate the same thing. Bouvier defines "cause" to be "a contested question before a court of justice; it is a suit or action." The suit, action, case or cause in which the State Court cannot proceed further is the matter removed to the Federal Court. This is manifest from the context which requires that the cause shall proceedin the Federal Court in the same manner as if it had been originally commenced there, language appropriate in reference to a suit, but wholly inappropriate in reference to the cause of action, which is the legal right of the plaintiff invaded by the defendant's breach of corresponding duty, upon which the right of action arose when the invasion took place. The respondent's contention, therefore, receives no aid from the phraseology of the statute. On the contrary, the plain meaning is that the suit or cause after removal shall proceed in the Federal Court, subject to the same rules which would govern if the suit or cause had been originally commenced there. If plaintiff had originally commenced the suit in the Federal Court for $10,000, and the same had been discontinued on payment of costs, we know of no rule which would prevent plaintiff's election to sue again in the State Court for any sum, subject to the defendant's election to remove again, or to sue for such sum as gave the State Court exclusive jurisdiction. This suit is for such a sum as in the policy of the removal statutes is such a case as should be tried exclusively by the State Court.
This conclusion renders it unnecessary to consider the other question raised as to whether the defendant by answering and going to trial and delaying this motion for about two years has waived any right it may have had to make such motion.
The judgment of the Circuit Court is reversed. *334