A judgment of the circuit court of the United States against a
party contending that that court has no jurisdiction because the
case has not been duly removed from a state court may be reviewed
as to the question of jurisdiction by this Court upon writ of error
directly to that court under the Act of March 3, 1891, c. 517,
§ 5.
An order of the circuit court of the United States remanding a
case to a state court is not reviewable by this Court.
An action brought in a state court which, by reason of joinder
as defendants of citizens of the same state as the plaintiff, is
not a removable one under the act of Congress until after the time
prescribed by statute or rule of court of the state for answering
the declaration may, upon a subsequent discontinuance in that court
by the plaintiff against those defendants, making the action for
the first time a removable one by reason of diverse citizenship of
the parties, be removed into the circuit court of the United States
by the defendant upon a petition filed immediately
Page 169 U. S. 93
after such discontinuance and before taking any other steps in
defense of the action.
If sufficient grounds for the removal of a case into the circuit
court of the United States are shown upon the face of the petition
for removal and of the record of the state court, the petition for
removal may be amended in the circuit court of the United States by
stating more fully and distinctly the facts which support those
grounds.
The right of a party to insist that a case has been duly removed
into the circuit court of the United States is not lost or impaired
by his making defense in the state court after that court had
denied his petition for removal.
This action was brought September 7, 1893, in an inferior court
of the State of Kentucky, by Powers against the Chesapeake &
Ohio Railway Company as well as against Boyer, Evans, and Hickey,
the conductor, engineer, and fireman of a railway train of the
company, to recover damages for injuries suffered by the plaintiff
from the running of the train against him by the negligence of the
defendants. The summons was not served on Hickey, but was served on
the other defendants.
The railway company, before its answer was required by the law
of Kentucky to be filed, removed the case into the circuit court of
the United States upon a petition alleging that the matter in
dispute exceeded, exclusive of interest and costs, the sum or value
of $2,000; that the railway company was a citizen of the States of
Virginia and West Virginia only, and the plaintiff was a citizen of
the State of Kentucky; that there was in this suit a separate
controversy which could be fully determined as between them, and
that the other defendants were fraudulently and improperly joined
for the sole purpose of defeating the railway company's right of
removal. In the circuit court of the United States, a transcript of
the record of the proceedings in the state court was filed, and
after a hearing, a motion by the plaintiff to remand the case to
the state court was sustained by an opinion filed and entered of
record, which stated that the plaintiff was a citizen of Kentucky,
and the railway company a citizen of Virginia, and the other
defendants were admitted to be citizens of Kentucky, and held that
there was no separable controversy
Page 169 U. S. 94
between the railway company and the plaintiff, and the case was
ordered to be remanded accordingly.
The railway company then filed in the state court a transcript
of the proceedings in the circuit court of the United States and an
answer containing a demurrer, and denying the facts alleged in the
original petition and alleging that the other defendants were
fellow servants of the plaintiff. A year after the first petition
for removal, and when the case was called for trial before a jury
in the state court, the plaintiff discontinued his action against
the individual defendants. The court overruled the demurrer, and
the railway company filed a second petition for removal, like the
first except in alleging that, in bringing this suit, Evans and
Hickey were fraudulently and improperly joined as defendants for
the purpose of defeating the railway company's right of removal;
that, because of their joinder, the cause had been remanded to the
state court, and that the action, having now been discontinued as
against them, was for the first time pending against the railway
company alone. The state court denied the petition for removal, and
the railway company excepted to the denial. The trial proceeded in
that court, resulting in a verdict and judgment for the plaintiff,
and the railway company appealed to the court of appeals of the
state.
At the next term of the circuit court of the United States, the
railway company filed a transcript of the record of the proceedings
in the state court. The plaintiff moved to remand the case to the
state court upon the grounds that it was not removable under the
acts of Congress; that the second petition for removal was not
filed within the time fixed by those acts, and that the question
sought to be made by the second petition for removal had been
already adjudged by the circuit court of the United States, and its
former adjudication was a bar to the second proceeding for removal.
The railway company (having filed affidavits showing that Boyer and
Hickey were citizens of Kentucky, and that the discontinuance of
the action as against the individual defendants was made by the
plaintiff's attorney without their request or knowledge, and
without any consideration moving
Page 169 U. S. 95
from them) was permitted by the circuit court of the United
States to amend its second petition for removal by substituting
therein the name of Boyer for that of Evans in correction of a
clerical mistake in the petition, and by alleging that Evans was a
citizen of Virginia and Boyer and Hickey were citizens of Kentucky,
and that, by reason of the fraudulent and improper joinder of them
to defeat the railway company's right of removal, the plaintiff was
estopped to deny that the second petition for removal was not filed
within the time required by law.
The circuit court of the United States, being of opinion that
the plaintiff had fraudulently joined Boyer and Hickey as
defendants in order to defeat the removal of the case to that
court, and was therefore estopped to deny that the second petition
for removal was filed in time, granted the petition for removal and
denied the motion to remand. 65 F. 129. The plaintiff then pleaded,
in abatement of the cause in the circuit court of the United States
and to the jurisdiction of that court, the proceedings in the state
court in which the railway company took part after the denial of
its second petition for a removal and its appeal to the court of
appeals of the state, and for the same reasons moved the court to
defer all proceedings until the termination of the case in the
courts of the state and in this Court if the case should be brought
here from the courts of Kentucky, and also moved to remand the
cause to the state court. The circuit court of the United States
sustained a demurrer to the plea and denied the motions to defer
and to remand.
The case was afterwards called for trial in the circuit court of
the United States and, the plaintiff insisting on his objection
that the court was without jurisdiction because the case had never
been properly removed into that court, and declining for that
reason to recognize the jurisdiction thereof or to prosecute his
action therein, the court, overruling all the plaintiff's
objections and being of opinion that the original petition of the
plaintiff did not state a cause of action, adjudged that the action
be dismissed, and rendered final judgment for the defendant.
Page 169 U. S. 96
A writ of error from this Court was sued out by the plaintiff
upon the sole ground that the cause was not properly removed into
the circuit court of the United States, and therefore that court
was without jurisdiction. The court allowed the writ of error and
certified to this Court the question so presented as a question of
the jurisdiction of the circuit court under the Act of March 3,
1891, c. 517, § 5, 26 Stat. 827.
MR. JUSTICE GRAY, after stating the case, delivered the opinion
of the Court.
In the circuit court of the United States, the plaintiff
contended that that court had no jurisdiction to entertain the case
and to render the final judgment complained of because the case had
not been duly removed into that court from the state court in which
it had been commenced.
The question thus presented was not, as in
Smith v.
McKay, 161 U. S. 355,
whether a suit of which the circuit court of the United States was
admitted to have jurisdiction was cognizable on the common law or
on the equity side of the court, but the question was whether the
circuit court of the United States had any jurisdiction whatever of
the case. The jurisdiction of the circuit court of the United
States was thus in issue, and, the question of its jurisdiction
having been duly certified, the case was rightly brought from the
circuit court of the United States directly to this Court under the
Act of March 3, 1891, c. 517, § 5, 26 Stat. 827, upon the
question of jurisdiction only.
The action was brought against a railroad company and several of
its servants to recover for an injury alleged to have been caused
to the plaintiff by the negligence of all the defendants. It is
well settled that an action of tort, which
Page 169 U. S. 97
might have been brought against many persons or against any one
or more of them and which is brought in a state court against all
jointly, contains no separate controversy which will authorize its
removal by some of the defendants into the circuit court of the
United States, even if they file separate answers and set up
different defenses from the other defendants, and allege that they
are not jointly liable with them, and that their own controversy
with the plaintiff is a separate one, for, as this Court has often
said:
"A defendant has no right to say that an action shall be several
which the plaintiff seeks to make joint. A separate defense may
defeat a joint recovery, but it cannot deprive a plaintiff of his
right to prosecute his suit to final decision in his own way. The
cause of action is the subject matter of the controversy, and that
is, for all the purposes of the suit, whatever the plaintiff
declares it to be in his pleadings."
Pirie v. Tvedt, 115 U. S. 41,
115 U. S. 43;
Sloane v. Anderson, 117 U. S. 275;
Little v. Giles, 118 U. S. 596,
118 U. S.
600-601;
Railroad Co. v. Wangelin, 132 U.
S. 599;
Torrence v. Shedd, 144 U.
S. 527,
144 U. S. 530;
Connell v. Smiley, 156 U. S. 335,
156 U. S. 340.
Applying this rule, the circuit court of the United States, when
this case was first removed into that court, ordered it to be
remanded. 65 F. 129, 130.
It is true that the same court, in similar cases between other
parties, has since decided otherwise, and, upon a review of
conflicting authorities and referring to the distinction taken
under the old system of special pleading between trespass and
trespass on the case, has held that a master and servant cannot be
joined in an action for a tort, and therefore the controversy
between each of them and the plaintiff is a separate controversy.
Warax v. Cincinnati &c. Railway, 72 F. 637;
Hukill
v. Mansfield & Big Sandy Railroad, 72 F. 745.
But is is unnecessary now to consider which of the views of the
circuit court upon this question is the correct one, because that
court, by its order remanding this case, distinctly and finally
adjudged, as between these parties and for the purposes of this
case, that at the time of the filing of the first petition for
removal, the case was not removable because,
Page 169 U. S. 98
as it then stood, some of the defendants were citizens of the
same state with the plaintiff, and there was no separate
controversy between the plaintiff and the railway company, a
citizen of a different state from himself. That order is not
reviewable by this Court.
Gurnee v. Patrick County,
137 U. S. 141;
In re Pennsylvania Co., 137 U. S. 451;
Birdseye v. Schaeffer, 140 U. S. 117;
Missouri Pacific Railway v. Fitzgerald, 160 U.
S. 556.
After the case had been so remanded and when it was called for
trial in the state court, the plaintiff discontinued his action
against all the individual defendants, leaving it an action between
citizens of different states, and the case then for the first time
became one in its nature removable, and the single remaining
defendant thereupon immediately filed a second petition for
removal, which was denied by the state court, but was granted, and
an amendment thereof allowed, by the circuit court of the United
States. 65 F. 129.
The existence of diverse citizenship, or other equivalent
condition of jurisdiction, is fundamental. The want of it will be
taken notice of by the court of its own motion, and cannot be
waived by either party.
Manchester &c. Railway v.
Swan, 111 U. S. 379. But
the time of filing a petition for removal is not essential to the
jurisdiction. The provision on that subject is, in the words of Mr.
Justice Bradley, "but modal and formal," and a failure to comply
with it may be the subject of waiver or estoppel.
Ayers v.
Watson, 113 U. S. 594,
113 U. S.
597-599;
Northern Pacific Railroad v. Austin,
135 U. S. 315,
135 U. S. 318;
Martin v. Baltimore & Ohio Railroad, 151 U.
S. 673,
151 U. S.
688-691;
Connell v. Smiley, 156 U.
S. 335.
Undoubtedly when the case, as stated in the plaintiff's
declaration, is a removable one, the defendant should file his
petition for removal at or before the time when he is required by
the law or practice of the state to make any defense whatever in
its courts.
Edrington v. Jefferson, 111 U.
S. 770;
Baltimore & Ohio Railroad v. Burns,
124 U. S. 165;
Kansas City &c. Railroad v. Daughtry, 138 U.
S. 298;
Martin v. Baltimore & Ohio
Railroad, 151 U. S. 673,
151 U. S.
686-687.
But it by no means follows, when the case does not become
Page 169 U. S. 99
in its nature a removable one until after the time mentioned in
the act has expired, that it cannot be removed at all.
In
Northern Pacific Railroad v. Austin, 135 U.
S. 315, where a plaintiff suing in an inferior court of
a state had laid his damages at less than the sum necessary to
authorize a removal into the circuit court of the United States,
and was permitted at the trial to increase the
ad damnum
above that sum, and judgment of the district court was affirmed by
the highest court of the state, a writ of error to that court was
dismissed by this Court solely because no application for removal
had been made after the allowance of the amendment, and the Chief
Justice, in delivering the opinion, said:
"If the application had been made, the question would then have
arisen whether it came too late under the circumstances. The
defendant was not entitled to remove the suit, as originally
brought, 'before or at the term at which such cause could be first
tried, and before the trial thereof.' But the objection to removal,
depending upon the absence of the jurisdictional amount, was
obviated by the amendment. As the time within which a removal must
be applied for is not jurisdictional, but modal and formal,
Ayers v. Watson, 113 U. S. 594,
113 U. S.
598, it may, though obligatory to a certain extent, be
waived, and as, where a removal is effected, the party who obtains
it is estopped upon the question of the time, so, if the conduct of
the plaintiff in a given case were merely a device to prevent a
removal, it might be that the objection as to the time could not be
raised by him."
135 U.S.
135 U. S.
318.
The question whether a defendant may file, in the state court in
which the suit was commenced, a petition for removal, after the
time mentioned in the act of Congress has elapsed, in a case which
was not removable when that time expired, is now directly presented
for adjudication, and the answer to this question depends upon the
terms and effect of the act in force when these proceedings took
place.
In order to warrant a removal from a court of a state into a
circuit court of the United States according to the terms of that
act, the necessary diverse citizenship or other foundation of the
jurisdiction of the circuit court of the United States
Page 169 U. S. 100
must exist. It is only when that does exist that
"any party entitled to remove any suit . . . may make and file a
petition in such suit in such state court at the time, or at any
time before the defendant is required by the laws of the state, or
the rule of the state court in which such suit is brought, to
answer or plead to the declaration or complaint of the plaintiff,
for the removal of such suit into the circuit court to be held in
the district where such suit is pending,"
and to give bond to file a copy of the record in that court "on
the first day of its then next session." Act March 3, 1887, c. 373,
as corrected by Act Aug. 13, 1888, c. 866, 25 Stat. 435.
This provision clearly manifests the intention of Congress that
the petition for removal should be filed at the earliest possible
opportunity. But so long as there does not appear of record to be
any removable controversy, no party can be entitled to remove it,
and the provision of the act of Congress that "any party entitled
to remove any suit . . . may make and file a petition for removal"
at or before the time when he is required to make answer to the
suit cannot be literally applied. To construe that provision as
restricting, to the time prescribed for answering the declaration,
the removal of a case which is not a removable one at that time
would not only be inconsistent with the words of the statute, but
it would utterly defeat all right of removal in many cases -- as,
for instance, whenever citizens of the same state as the plaintiff
were joined as defendants through an honest mistake, not discovered
by the plaintiff until after the time prescribed for answering, or
whenever a personal injury was supposed at the time of bringing an
action therefor, to be a comparatively trifling one, which might be
fully compensated by a sum much less than $2,000, and was
afterwards discovered to be so much graver, that there could be no
doubt of the power and the duty of the court to allow an amendment
increasing the
ad damnum.
The reasonable construction of the act of Congress, and the only
one which will prevent the right of removal, to which the statute
declares the party to be entitled, from being defeated by
circumstances wholly beyond his control, is to hold
Page 169 U. S. 101
that the incidental provision as to the time must, when
necessary to carry out the purpose of the statute, yield to the
principal enactment as to the right, and to consider the statute as
in intention and effect permitting and requiring the defendant to
file a petition for removal as soon as the action assumes the shape
of a removable case in the court in which it was brought.
The result is that when this plaintiff discontinued his action
as against the individual defendants, the case for the first time
became such a one as, by the express terms of the statute, the
defendant railway company was entitled to remove, and therefore its
petition for removal, filed immediately upon such discontinuance,
was filed in due time.
A petition for removal, when presented to the state court,
becomes part of the record of that court, and must doubtless show,
taken in connection with the other matters on that record, the
jurisdictional facts upon which the right of removal depends,
because, if those facts are not made to appear upon the record of
that court, it is not bound or authorized to surrender its
jurisdiction, and if it does, the circuit court of the United
States cannot allow an amendment of the petition, but must remand
the case.
Crehore v. Ohio & Mississippi Railway,
131 U. S. 240;
Jackson v. Allen, 132 U. S. 27. But
if, upon the face of the petition and of the whole record of the
state court, sufficient grounds for removal are shown, the petition
may be amended in the circuit court of the United States, by leave
of that court, by stating more fully and distinctly the facts which
support those grounds.
Carson v. Dunham, 121 U.
S. 421,
121 U. S. 427;
Martin's Baltimore & Ohio Railroad, 151 U.
S. 673,
151 U. S.
690-691.
In the case at bar, the second petition for removal, as
presented to the state court, alleged that the petitioner was a
citizen of the states of Virginia and West Virginia only, that the
plaintiff was a citizen of the State of Kentucky, that Evans and
Hickey had been fraudulently and improperly joined as defendants
for the purpose of defeating the petitioner's right of removal,
that, because of their joinder, the case had been remanded to the
state court, and that the action,
Page 169 U. S. 102
having been discontinued against them, was now for the first
time pending against the petitioner alone, and by the transcript,
previously filed in the state court, of the record of the
proceedings in the circuit court of the United States upon the
first petition for removal, containing the opinion and order
remanding the case, it appeared to have been admitted that the
individual defendants were citizens of Kentucky.
It was thus made to appear upon the record of the state court
that the case could not have been removed before, and that it had
now become in its nature removable by reason of the diverse
citizenship of the parties. Such being the case, it was rightly
removed by the second petition for removal into the circuit court
of the United States, and this petition was rightly permitted to be
amended in that court.
The petition, as amended, distinctly alleged that Evans was a
citizen of Virginia, that Boyer and Hickey were both citizens of
Kentucky, and that, by the discontinuance against, them the action
was for the first time pending against the railway company alone,
and thus showed a case which the railway company was entitled to
remove independently of the allegations that these persons had been
fraudulently joined as defendants to defeat the right of removal,
and that the plaintiff was therefore estopped to deny that the
second petition for removal was filed in time.
We do not find it necessary to pass upon the points of
fraudulent joinder and of estoppel, made by the railway company,
and upon which the circuit court of the United States proceeded in
retaining jurisdiction of the case, because, for the reasons before
stated, we are of opinion that upon the true construction of the
act of Congress, the petition, filed as soon as the case became a
removable one, and before the railway company took any new steps in
defense of the action, was seasonably filed, and that it
sufficiently stated grounds for removal, and was therefore rightly
permitted to be amended.
It is hardly necessary to add that the railway company, by
making defense in the state court after that court had declined to
surrender jurisdiction of the case, did not lose or
Page 169 U. S. 103
impair its right to insist that the case had been lawfully
removed into the circuit court of the United States. The defendant,
notwithstanding its objection, duly saved upon the record, to the
jurisdiction of the state court, having been forced to a hearing in
that court, is entitled to have the error in this respect corrected
in any court having jurisdiction for the purpose.
Removal
Cases, 100 U. S. 457,
100 U. S. 475;
Edrington v. Jefferson, 111 U. S. 770,
111 U. S.
774.
Judgment affirmed.
