Montgomery & Atlanta Motor Freight Lines, Inc. v. Morris , 193 Miss. 211 ( 1942 )

ON SUGGESTION OF ERROR. In the opinion handed down in this case the statement that no diversity of citizenship was shown until the administratrix was eliminated is not true. Diversity of citizenship was shown when the children of Mrs. Villere were made parties plaintiff with the administratrix. It was removable then, because under the law the administratrix had no right to sue, and there was diversity of citizenship between the Villere children and the motor company.

The United States District Court refused to entertain jurisdiction and remanded the case back to the state court 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, 102 U.S. 177, 26 L. Ed. 129; Sears, Roebuck Co. v. Van Dolah, 188 Miss. 59,194 So. 475. In the Sears, Roebuck Company case the court held that the limitation on the time within which the application to remove may be made is not jurisdictional and may be waived, or the opposing party may be estopped by his conduct from objecting to the removal. If at the time the defendant is due to plead the cause appears not to be removable, but afterwards a removable cause is disclosed, the application to remove may then be filed.

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, 312 U.S. 563, 61 S. Ct. 715, 85 L. Ed. 1044; Employers Reinsurance Corp. v. Bryant, 299 U.S. 374, 57 S. Ct. 273, 81 L. Ed. 289; Gordon v. Longest, 16 Pet. 97, 10 L. Ed. 900. Where the defendant's application to remove the cause to the Federal court is wrongfully denied by the state court, the right to remove it is not waived by defending the action in the state court. Home Life Ins. Co. v. Dunn, 19 Wall. 214, 22 L. Ed. 68; National S.S. Co. v. Tugman,106 U.S. 118, 1 S. Ct. 58, 27 L. Ed. 87; Kanouse v. Martin, 15 How. 198, 14 L. Ed. 660; Metropolitan Cas. Ins. Co. v. Stevens,312 U.S. 563, 61 S. Ct. 715, 717, 85 L. Ed. 1044. In the Stevens case the court discussed the reasons and policy for the adoption of the provision of the Federal Judicial Code above copied, and then used this language:

"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 [236 U.S. 305, 35 S. Ct. 357, 59 L. Ed. 591]; Stone v. South Carolina, 117 U.S. 430, 6 S. Ct. 799, 29 L. Ed. 962; Baltimore Ohio R. Co. v. Koontz, 104 U.S. 5, 26 L. Ed. 643; Removal Cases,100 U.S. 457, 25 L. Ed. 593; Gordon v. Longest, supra [16 Pet. 97, 10 L. Ed. 900]. He may remove the suit to the federal court despite the ruling of the state court. Baltimore Ohio R. Co. v. Koontz, supra; Kern v. Huidekoper, 103 U.S. 485, 26 L. Ed. 354; Home Life Ins. Co. v. Dunn, supra. He may proceed in both courts at the same time. Kern v. Huidekoper, supra; Removal Cases, 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., 169 U.S. 92, 18 S.Ct. 264, 42 L. Ed. 673; Cates v. Allen, 149 U.S. 451, 13 S. Ct. 883 [977], 37 L. Ed. 804; Graves v. Corbin, 132 U.S. 571, 10 S. Ct. 196, 33 L. Ed. 462."

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 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.