Osteen v. A.C.L.R. R. Co.

The opinion of the Court en banc was delivered by

Mr. Justice Cothran.

Action for $3,500 damages on account of the destruction of a truck belonging to the plaintiff by collision with a train of the defendant at a highway crossing.

Within due time the defendant filed petition and bond for removal to the Federal Court, and made a motion before Hon. T. S. Sease, Circuit Judge, for an order removing the case to the Federal Court. The ground upon which the defendant sought to remove the case was that it appeared in the complaint that a separable controversy existed between the railroad company and the plhintiff, with which the codefendant engineer was not concerned. Judge Sease signed an order refusing the motion upon the ground that the complaint did not state such separable controversy. Thereupon the defendant filed a certified copy of the record with the clerk of the District Court of the United States. Thereafter the plaintiff made a motion before Judge Smith, of the Federal Court, for an order remanding the case to the: State Court, which he granted. The case then came on for trial in the' Court of Common Pleas for Marion County, before Judge Memminger and a jury, and resulted in a verdict of $2,500 in favor of the plaintiff. The defendant railroad company, which was solely affected by the verdict, appeals.

The appeal involves, first, the correctness of Judge Sease’s order refusing to remove the case to the Federal Court.

Section 28 of the Judicial Code (U. S. Comp. St. § 1010) in most unequivocal terms makes the order of a District Judge of the Federal Court remanding a case to the State Court absolutely final — not only final so far as an immediate appeal is concerned, but final even upon writ of error or certiori to the State Court from the United States Supreme Court after final judgment in the State Court against the defendant. This is conceded by the defendant, which disavows any purpose in this appeal to review the order of Judge Smith remanding the 'case. But it insists upon its right to review the order of Judge Sease, of the State Court, refusing to remove the case. The defendant was under no obligation to make the motion before Judge Sease. As a matter of courtesy to the State Court, the motion was entirely proper, but, if the petition disclosed a removable case, it was, upon compliance with the Federal Statute eo instante removed to the Federal Court, and no order made or refused by the State Court could charge that status. It must be conceded that, if this Court should reverse the order of Judge Sease, it would be tantampunt to reversing the order of Judge Smith, which, as has been seen, was final for all purposes. It would be remarkable if the defendant, by making a motion which it was under no obligation to make, should secure the right to review an order which the Federal statute declares to be final. The right of appeal is not a vested one, but a matter of grace, and in this instance it has been explicitly denied in every conceivable form, writ of error, certiorari, mandamus, or otherwise.

It is accordingly unnecessary to consider whether the complaint states a separable controversy or not; the jurisdiction of the State Court is unalterably fixed by the order of Judge Smith remanding the case. Empire Co. v. Towboat Co., 59 S. C. 549, 38 S. E. 156; State v. Columbia Co., 112 S. C. 528, 100 S. E. 355. The first and second exceptions are therefore overruled.

We find it unnecessary to consider other exceptions than the eighth, ninth, tenth, eleventh, twelfth, and thirteenth.

The defendant gave notice of a motion to amend these exceptions by setting out in full therein the several requests to charge, the refusal of which forms the basis of these exceptions. The Court allows the amendments. The exceptions as amended will be reported.

These requests contain established principles of law pertinent to the issues in the case and sustained by the decisions of this Court. Drawdy v. Railroad Co., 78 S. C. 374, 58 S. E. 980; Cable Co. v. Railroad Co., 94 S. C. 143, 77 S. E. 868; McLean v. Railroad Co., 81 S. C. 100, 61 S. E. 900, 1071, 18 L. R. A. (N. S.) 763, 128 Am. St. Rep. 892; McKeown v. Railroad Co., 98 S. C. 338, 82 S. E. 437; Barber v. Railroad Co., 34 S. C., 444, 13 S. E. 630. Not having been covered by the general charge (which will be reported), their refusal was reversible error. They were intended to particularly emphasize the duty of a traveler approaching a crossing, the breach of which was relied upon as a defense.

The judgment of this Court is that judgment of the Circuit Court be reversed and the case re,manded to that Court for a new trial.

Mr. Chiee Justice Gary, Mr. Justices Watts, Fraser and Marion and Mr. Justices Wirson, Shipp, Frank B. Gary, Rice, Bowman, Peurieoy, McIver, Maurdin, and Townsend, Circuit Judges, concur.