Jackson v. Gould , 1883 Me. LEXIS 72 ( 1883 )

Danporth, J.

The question involved in this case, arises upon a petition for the removal of the action from the State court to the United States court. The petition fully sets out the original action, the proceedings therein, the history and pendency of the writ of review, and alleges among other things, that both the original suit, and the action of review, "are suits of a civil nature at law, in each of which the matter in dispute exceeds the sum of five hundred dollars, exclusive of costs, and the whole controversy therein, is between . . citizens of different States.” The petition closes by asking that the court will accept the petition and bond, " and proceed no further in said cause ” in review now pending and will cause the record therein to bo removed into said Circuit Court of the United States. ”

It thus appears that while the original action, and that in review, are described and treated as two actions and are claimed in the argument, as separate and distinct, the prayer of the petition is that one only be removed. This perhaps could not have been otherwise for .that one and not the other, is alone pending. The original action has gone to judgment and that judgment is binding upon the parties and must remain so whatever may be the result of the review. Curtis v. Curtis, 47 Maine, 525; Dyer v. Wilbur, 48 Id. 287; Whittaker v. Berry, 64 Id. 238. If this were all the case, it would be seen to be of little consequence whether the prayer of the petition were granted or denied, for if granted it would carry with it only the writ of review and the proceedings under that, which would present to the court no pleading, no issue, and none could be made without the papers in the original action and hence no trial could be had, no judgment rendered.

But while it is claimed that the writ of review is a distinct process and the foundation of a distinct and independent action for the purpose of removal, yet on removal it takes with it the records of the original action for the purpose of trial and judgment, and this is clearly necessary in order to render the removal effectual for any useful purpose. The question then arises, and it is the only question in the case, whether such an action in review is removable within the meaning of the acts of Congress applicable. For it is certain that unless authorized by such an act no removal can be had. Insurance Co. v. Pechner, 95 U. S. 183.

The ground upon which the removal is claimed, is that of citizenship; the right must therefore be found in, U. S. E. S., § 639, or in the act of Congress of March 3, 1875, c. 137. It cannot be under the R. S., for that provides only for a removal on petition of a defendant in an action by a citizen of the State wherein it is brought. It must therefore be under the act of 1875, which authorizes a removal upon the petition of either party. This act was passed for the purpose of fixing the jurisdiction of the courts of the United States, as well as to make provision for the removal of causes from the State courts thereto, and so far as material to this case is in substance as follows :

Section one provides that the United States courts shall have original cognizance, concurrent with the courts of the several States in suits of a civil nature at law or in equity, where the matter in dispute exceeds, exclusive of costs, the sum of five hundred dollars, in which there shall be a controversy between citizens of different States.

" Section 2. That any suit of a civil nature, at law or in equity, now pending or hereafter brought in any State court, where the matter in dispute exceeds, exclusive of costs, the sum or value of five hundred dollars, arising under the constitution of the United States, &c. . . . and when in any suit mentioned in this section there shall be a controversy which is wholly between citizens of different States and which can be wholly determined as between them, then either one or more of the plaintiffs or defendants, actually interested in such controversy, may remove said suit to the circuit court of the United States for the proper district.”

"Section 3. "That whenever either party . . . entitled to remove any suit, mentioned in the next preceding section, shall desire to remove such suit from a state court to the circuit court of the United States, he . *. may make or file a petition in such' suit in such state court, before or at the term at which such cause could be first tried and before the trial thereof, for the removal of such suit . . . and file therewith a bond . . for his entering in such circuit court, .... a copy of the record in such suit. , . . It shall then be the duty of the state court to accept said petition and bond and proceed no further in such suit. . . . And the said copy being entered as aforesaid, in said circuit court of the United States, the cause shall then proceed in the same manner as if it bad been originally commenced in the said circuit, court.”

"Section (5. The circuit court of the United States shall in all suits removed under the provisions of this act proceed therein as if the suit had been originally commenced in said circuit court and the same proceedings had been taken in such suit as shall have been had in said state court prior to its removal.”

This statute gives the circuit court concurrent jurisdiction with the state court in certain cases whore the controversy is between citizens of different states. Such cases and such only can be removed when commenced in the state court and when removed they are to be tried in the United States court as if originally commenced there. To secure this right of removal the petition therefor " must be filed in the state court before or at the time at which such cause could be first tried and before the trial thereof.”

The original action comes within the description in every respect unless it may be the residence of the party seeking the removal. It is claimed that when that action was commenced, both parties were citizens of the same state and the change of residence subsequent to that would not authorize a removal. In reply to this, it is said that the fact is otherwise and testimony upon this point has been offered by each party; and further, that it is sufficient if the parties were residents of different states at the time of filing the petition. Upon this question there is a conflict in the decisions of different courts of the United States and as in the view we take of this case it is immaterial we give no opinion upon it.

It is, however, very evident that so far as the original case is concerned the petition came too late. That case was not then pending; the controversy involved in it had ceased, for it had gone to judgment and that judgment, as we have seen, is in full force and effect. True, it is alleged in the petition that the petitioner never had any notice of the pendency of that action and that the term at which the petition was filed -was the " first term at which the controversy in said original suit could bo tried.”

The record shows that no actual notice was given, and the petitioner, though a party, did not appear in the case. But being a non-resident, he had such notice as the law requires, and having property in the state which was attached upon the writ, the court acquired jurisdiction to the extent of that property and to render the judgment that was rendered. This in fact is not denied, but is the ground upon which the petition for review and all the proceedings under it are predicated. It is therefore not open to the petitioner to deny the jurisdiction of the court in rendering that judgment, or its validity. Whatever may have been the literal fact as to the appearance of the petitioner, or his opportunity for trying the case, no statute of the United States can be found authorizing the removal of any case after final judgment. The remarks of Milleb, J., in Nougue v. Clapp, 101 U. S. 554, are applicable in this connection : " We think that for this court, after all that has been done, to undertake to decree that what that court did is void, to sit in review on its judgment, and reverse its decree and set aside its sale, in a case where its jurisdiction is undoubted, is unwarranted by the relations which subsist between the two courts. It would be an invasion of the powers belonging to that court, and such doctrine would, upon the simple allegation of fraud practiced in the court, enable a party to retry in the federal court any case decided against him in the state court.” In Railroad Company v. McKinley, 99 U. S. 147, the petition for removal was filed while the question for new trial was pending, and the court held that the state court retained jurisdiction and refused to interfere.

The case of Harter v. Kernochan, 108 U. S. 562, relied upon in the argument, confirms this view rather than otherwise. Though in that case the defendant came in for the first time after a final decree had been entered, yet under the facts of the case and by virtue of a statute of Illinois, this coming in vacated the decree and the case was re-docketed and stood for trial the same as though no decree had ever been entered. It was upon this ground that the removal was allowed. The inference is inevitable that but for the effect of the statute in vacating the decree, it would have stood and have been considered final and conclusive, and the removal denied.

In Stevenson v. Williams, 19 Wallace, 576, Field, J., says, "After a final judgment has been rendered in the state court, the case cannot be removed to the circuit court of the United States, and there proceed as the statute provides, in the same manner as if brought there by original process without setting aside the trial and judgment of the state court as of no validity. No such proceeding is contemplated by the act.” In Insurance Company v. Dunn, 19 Wallace, 224, the question was whether the action of the state court was a final judgment, and the court held if it was so it could not be removed, otherwise it might be.

The principle involved is simple and well established. The case is one of which, under the statute of 1875, the state and United States courts have original and concurrent jurisdiction, and that jurisdiction which is properly exercised by either will be respected by the other. That of the state court may be interrupted by the removal, but eveir then so tar as it has been exercised, by the express terms of § 6 of the statute, the case is to be taken as if " the same proceedings had been taken in such suit ” in the circuit court. If those proceedings have resulted in a final judgment, that must be an end.

It remains to be seen whether the writ of review as an independent and distinct process can be removed under the statute, or whether it has so changed the status of the original action that the whole may be removed together. If both must go together, it would seem that the foregoing considerations would be fatal to the removal, for if the one cannot go, certainly both cannot.

The petition asks for the removal "of the said cause in review.” If a review it must bo a review of something; and that something is shown by the record to be the original action. The two in fact are so combined that they cannot bo separated. The new process is but a supplement to, a continuance of the old one. It is but a review of that, not for the purpose of annulling or changing the judgment therein rendered but certainly to modify and control its force and effect and to prevent its due execution. It may be as claimed, a distinct process, but it can not bo an independent one, for the original action is the sole foundation upon which it rests, and take that away, and the superstructure must necessarily fall.

In this view, it is clearly not within the statute of removals. Whether it would be competent for Congress to pass an act which would authorize its removal, or whether it should or should not have done so, is not now the question. It is enough that we find no such statute.

As already seen, the statute so far as applicable to this case authorizes the removal of süch suits only as could have been entered originally in the United States court. This could not have been so entered. It is entirely the creation of the statute and the procedure under it must be in conformity thereto. If the petitioner would avail himself of the advantages to be derived from it, he must submit to the conditions and limitations imposed; one of which is that it must be entered at the term specified of the court which granted it. It is immaterial that at one time the petitioner was entitled to the writ as a matter of right. If any advantage could have been derived from that fact it was waived and the writ was obtained on petition and at the discretion of the court. In the.exercise of that discretion a condition was imposed, which is not a part of the proceedings under the writ but prior to it. Jackson v. Gould, 72 Maine, 335.

The statute of removals further provides that after entry in the circuit court the proceedings shall be the same as if originally entered there. This surely can only refer to such proceedings as the rules of that court require and not to such as may be prescribed for the state court by statute or otherwise. Nothing is required to be entered in the circuit court but a copy of the process removed and the proceedings so far as they have been had under that process. So far, perhaps the circuit court would be bound by force of the statute, but no farther, and especially it would not be bound by the conditions imposed upon the granting the writ, as that was no part of the proceedings under it and nowhere appears in any record to be produced. Then, too, the judgment to be rendered is not in accordance with any rules of procedure in the circuit court. It is not made up from the verdict rendered upon the issue tried, but from a comparison of that with the original judgment, which is not removed, but remains and must remain in the state court.

It Is claimed that the United States courts will proceed as the state court would because the state statute requires it. It may be true that where a state statute gives a new right, or a new remedy for an old right, in a proper case the United States will enforce it. But in doing so they will be governed by their own rules of proceeding. Van Norden v. Morton, 99 U. S. 378.

But the removal depends upon Hi particular statute, which nowhere authorizes but prohibits the circuit court to review' the doings of the state courts, and permits no judgments except such as follow the issue in an original process in the ordinary course of proceeding.

It is claimed that this would oust the state court of its jurisdiction in review of cases tried in the lower courts. But that jurisdiction is especially authorized by the statute, It. S., c. 89, § 1, and to enable it to exercise that jurisdiction, § 7 of the same chapter requires the plaintiff in review to "produce and file an attested copy of the writ, judgment, proceedings and depositions, or their originals, in the former suit.” There is no such provision in the United States statute, as there certainly would have been if it had been the intention to have given that court the power to review cases tried in the state courts.

Thus it is very evident that the statute of removal was not intended to give the United States courts any supervisory power of state courts, or make them a court of appeal, but simply to take from them a certain class of cases in w'hich the parties were residents of different states, and in which they had original jurisdiction, with authority to try them as original entries and as original cases, and in many cases the only question involved is whether that for which the removal is asked is an original process or supplemental, or incidental to or a review of some other case. West v. Aurora City, 6 Wallace, 139; Barrow v. Hunton, 99 U. S. 80; Bank v. Turnbull & Company, 16 Wallace, 190; Vannevar v. Bryant, 21 Id. 41.

It is equally fatal to the petitioner’s right of removal, whether we consider the action of review a distinct process, or connected with and supplemental to the original action. If distinct it is but a part of the case and comes within the principle laid down in West v. Aurora City, supra, in which it is said on page 142, "It is equally fatal to the supposed right of removal that the record presents only a fragment of a cause, unintelligible except by inference to other matters not sent up from the state court and through explanations of counsel.” So in this case as already seen upon the theory that the review is distinct and independent, the law does rifet contemplate the production of the records in the original case, and yet without them the part which is produced would be unmeaning and unintelligible.

If on the other hand it is supplemental to and a continuance of the original action, as it evidently is, then it is but a review of the original action, intended as a correction or restraint of the judgment therein rendered, and can be sustained only in accordance with the statute creating it, or of some other statute applicable. But no other is found giving the United States authority to review actions disposed of in the state courts by way of removal.

In Freeman v. Howe, 24 Howard, 450, Nelson, J., in the opinion on page 460, after referring to several cases, says : " The principle is, that a bill filed on the equity side of this court to restrain or regulate judgments or suits at law in the same court, and thereby prevent injustice, or an inequitable advantage under mesne or final process, is not an original suit, but ancillary and dependent, supplementary merely to the original suit, out of which it had arisen, and is maintained without reference to the citizenship or residence of the parties.” This writ of review is equivalent to a bill in equity, granted for the sole purpose of restraining or regulating the judgment in the the original suit, that injustice may not be done thereby.

Dillon, in his work on the Removal of Causes, page 56, says : " Causes cannot be removed to the circuit court for a review of the action of the state court, but only for trial.” In Whittier v. Hartford Fire Ins. Co. 55 N. H. 141, a case of review like the present, it was held that it was not removable, that in substance it would remove the original action and it was too late for that. Ladd, J., who delivered one of the opinions, put it upon a broader ground, remarking that " There has been a trial of the ease upon its merits in the state court, and a final and irreversible judgment rendered therein. Availing themselves of a right conferred by a statute of this state the defendants have brought a review, and the cause may now bo tried over again here, in accordance with the provisions of the statute, which imposes various qualifications and conditions upon the exercise of that right. Unless the cause is to be tried and judgment rendered in. the federal court on review, the same as though it had not been tried at all, (which I suppose nobody will pretend) I do not see-how it can be tried there at all, unless the federal court will undertake to administer the municipal law of New Hampshire, and communicate with the state court for the purpose of ascertaining what the final judgment there shall be.”

In Du Vivier v. Hopkins, 116 Mass. 125, Gray, C. J., in-the opinion on page 128, says : " When a cause is legally removed into the circuit court 'of the United States, the jurisdiction of the state courts over it ceases, and the suit is thenceforth to proceed to trial, judgment and execution in the federal courts, and cannot afterwards be remanded to the state courts for any purpose.” If the review cannot be remanded, it is difficult to-see in what way it or any judgment the circuit court can render, can restrain or modify the execution of the judgment in the state court. Thus in any view we can take of the case, we find no authority for its removal, but both principle and authority are against it.

Exceptions sustained.

AppletoN, C. J., Barrows and Peters, J,L, concurred. VirgiN and SymoNds, JJ., concurred in the result.