E H EMERY & CO. v. AMERICAN REFRIGERATOR TRANSIT CO
240 U.S. 634 (1918)

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U.S. Supreme Court

E H EMERY & CO. v. AMERICAN REFRIGERATOR TRANSIT CO, 240 U.S. 634 (1918)

240 U.S. 634 246 U.S. 634

E. H. EMERY & CO.
v.
AMERICAN REFRIGERATOR TRANSIT CO.
No. 739.

Argued and Submitted April 19, 1918.
Decided April 29, 1918.

Mr. C. W. Whitmore, of Ottumwa, Iowa, for appellant.

Mr. Fred. W. Lehmann, Jr., of Des Moines, Iowa, for appellee.

Page 240 U.S. 634, 635

Mr. Justice HOLMES delivered the opinion of the Court.

The plaintiff, the appellant, brought a suit in a State Court against the Chicago, Burlington & Quincy Railroad Company and the appellee. The original petition sought to charge both, as common carriers, under the Interstate Commerce Acts for damage to peaches caused by their being improperly stowed, handled and iced, amounting to less than $3,000. After a trial a judgment was entered for the railroad and it was held that under the Iowa Statutes the present appellee was entitled to be dismissed, as sued in the wrong county. Thereupon the plaintiff issued a garnshee process against the railroad as a debtor of the appellee, upon which the railroad made default. Then the appellee was dismissed 'as to the personal action but not as to said proceeding in rem,' and a time was allowed for the filing of a petition by the appellant. A petition calling itself 'Substituted Petition' was filed on October 16, 1916, and a few days later in the same month a petition for removal to the District Court of the United States was presented, which was gran ed by the State Court. A motion to remand was made and denied. The plaintiff stood upon its motion and declined to proceed farther, denying the jurisdiction of the Court, whereupon the petition was dismissed, judgment was entered for the defendant, an appeal was taken and it was certified that the appeal was taken solely upon the jurisdiction of the Court.

We are content to assume without deciding that the case, whether a new action or not, had become removable if the difficulties to be mentioned can be overcome. On this assumption the jurisdiction is maintained on the argument that the plaintiff seeks to impose liability upon the defendant through the provisions of the Interstate Commerce Act, the governing tariffs and an interstate bill of [240 U.S. 634, 636]


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