1. A party to a suit who, under the Act of March 3, 1875, c.
137, 18 Stat., pt. 3, p. 470, was entitled to its removal from the
state court wherein it was brought, filed in due time his petition
and the requisite bond, and prayed for such removal to the circuit
court of the United States for the proper district. His petition
was denied.
Held that on his entering in the circuit court
within the period prescribed by that act, the transcript of the
record, that court acquired jurisdiction of the suit, and that all
subsequent proceedings of the state court therein are absolutely
void.
2. A sheriff to whom was directed a
fieri facias sued
upon a judgment against A., levied the writ upon certain goods and
chattels, for which replevin was brought in a state court against
him by B., a nonresident of the state, claiming to be the owner of
them.
Held that there is nothing in the character of the
suit which precludes its removal by B. to the circuit court.
3. Where a state court, proceeding to the trial of a suit which
had been removed therefrom, renders judgment against the party,
whose petition for a removal it erred in refusing to grant, he may
raise here the question as
to the jurisdiction of that court notwithstanding the fact that
he appeared at the trial and insisted upon the merits of his cause
of action or defense.
4. Where a party, pursuant to leave, files a plea to the
jurisdiction of the court, his former plea to the merits is thereby
withdrawn.
The facts are stated in the opinion of the Court.
MR. JUSTICE WOODS delivered the opinion of the Court.
This was an action of replevin brought by Frederick W.
Huidekoper, John N. Dennison, and Thomas W. Shannon, in
Page 103 U. S. 486
the Circuit Court of Cook County, Illinois, at its May Term,
1877, to-wit, on May 22, 1877, against Charles Kern, to recover the
possession of one thousand tons of old railroad iron which as they
claimed he wrongfully detained from them.
The writ of replevin, issued May 23, 1877, was on the same day
served by the coroner of the county, who received from the
plaintiffs a statutory bond, and delivered to them the possession
of the iron. The summons was made returnable at the next term of
the court, which began on the third Monday of June.
The declaration, which was filed June 30, alleged that
plaintiffs were the owners and lawfully entitled to the possession
of certain goods and chattels, to-wit the iron in controversy,
which formerly had been in the track of the Chicago, Danville, and
Vincennes Railroad, but that it was then lying along the Mud Lake
track, near Twenty-fourth Street, in the City of Chicago; that it
was of the value of $18,000; that on May 9, 1877, Kern had
wrongfully taken possession of it, and still detained the same from
them.
Kern, July 6, 1877, pleaded that he was the Sheriff of Cook
County, and that as such, May 1, 1877, he had levied on and still
held the iron by virtue of two certain executions against the
Chicago, Danville, and Vincennes Railroad Company, both issued upon
judgments in the Superior Court of Cook County, one in favor of the
Bank of North America and the other in favor of John McCaffrey, for
the aggregate sum of about $11,000, and that at the time of the
levy the iron was the property of that company.
On May 31, 1877, the plaintiffs filed in the court their
petition to remove said cause to the Circuit Court of the United
States for the Northern District of Illinois. The petition alleged
that Kern was a citizen of the State of Illinois, and that the
plaintiffs at the institution of the action were, and still
continued to be, citizens of states other than Illinois; that the
amount in controversy in the suit exceeded $500; that there had
been no trial of the suit, and the same could not have been tried
before the term at which said petition was filed; and that the suit
involved a controversy between citizens of different states, which
could be wholly determined as between them.
Page 103 U. S. 487
The petition was accompanied by the bond required by the statute
of the United States.
On June 2, the court denied the petition for removal on the
ground that it was prematurely presented and filed, that at that
date no declaration had been filed, the defendant was not in court,
and was not required to appear until the third Monday of June.
On June 30, the petition of the plaintiffs and their bond for
the removal of the cause being still on file, and the time for the
appearance of the defendant having passed, the plaintiffs filed
their declaration, and immediately moved the court for an order
transferring the cause, in accordance with their petition, to the
circuit court of the United States. This motion was denied.
On July 6, the date upon which the defendant filed his plea, and
after said plea had been filed, the plaintiffs caused an order to
be entered dismissing their petition for the removal of the cause
filed May 31, and immediately filed another for the same purpose,
containing the same averments, together with a bond, as required by
the statute.
This petition was also denied by the state court.
Nevertheless, on July 27, 1877, the plaintiffs filed a
transcript of the record of the cause in the clerk's office of the
Circuit Court of the United States for the Northern District of
Illinois. The term of that court, as prescribed by law, began on
the first Monday of that month.
On Nov. 14, 1877, the said term still continuing, that court
made an order approving the filing of the said record on July 27
preceding.
On June 5, 1878, the counsel of the plaintiffs moved that court
that an order be entered declaring that the cause had been removed
from the Circuit Court of Cook County, and that the circuit court
of the United States had exclusive jurisdiction thereof by reason
of such removal, and that the cause be placed on the trial calendar
of the court. The court sustained the motion and directed an order
to be made in accordance therewith.
On June 26, 1878, the defendant, by his attorney, entering
special appearance for that purpose, filed a written motion in
Page 103 U. S. 488
the United States circuit court for the dismissal of said
action. This motion was overruled.
At the July Term, 1878, of the Circuit Court of Cook County,
that court still claiming jurisdiction of the cause,
notwithstanding the proceedings for its removal above recited, the
plaintiffs filed in that court a replication to the plea of the
defendant, in which they alleged that said railroad iron at the
time of the levy was the property of the plaintiffs, and not of the
railroad company, as alleged in defendant's plea.
On Nov. 12, 1878, the defendant moved in the circuit court of
the United States for leave to file a plea to the jurisdiction,
which, after argument of counsel, was granted. Thereupon, on the
same day, he filed the following plea:
"The defendant, by E. Walker, his attorney, comes and prays
judgment of the said record herein filed, because he says that the
plaintiffs first instituted their said action of replevin in the
Circuit Court of Cook County, in the State of Illinois, which said
court has exclusive original jurisdiction of said action, and
caused the clerk of said state court to issue a summons against the
said defendant and a writ of replevin, under which said last-named
writ the property described in said writ and declaration was seized
by the officer of said court and delivered to the said
plaintiffs."
"That said writs were made returnable to the June Term of said
court, A.D. 1877, at which said term the said defendant appeared
and filed his plea to said declaration."
"The said defendant further shows that long after the filing of
the said transcript of record in this Court the said plaintiffs, to
wit, at the May Term, A.D. 1878, filed in the said Circuit Court of
Cook County their replication to the said defendant's plea, and at
said term of said state court prosecuted their said action to a
final hearing; and such proceedings were thereupon had in said
action that afterwards, to-wit at said May Term, to wit, on the
fifth day of June, A.D. 1878, the said defendant, by the
consideration and judgment of the said Circuit Court of Cook
County, recovered a judgment against the said plaintiffs for the
return to him of the property described in said declaration and
writ of replevin, being the same identical property described in
the aforesaid transcript of record, and for his costs
Page 103 U. S. 489
in said action, as by the record and proceedings thereof still
remaining in said Circuit Court of Cook County more fully appear,
which said judgment is in full force, unreversed and unsatisfied,
and this the defendant is ready to verify by the record. Wherefore
the said defendant prays judgment if the court here will take
jurisdiction and cognizance of the action aforesaid."
The plaintiffs filed a demurrer to this plea, and afterwards, on
Nov. 21, 1878, the demurrer was argued. The minutes of the court
state its judgment upon the demurrer as follows:
"Now come the plaintiffs by Henry Crawford, Esq., their
attorney, and the defendant by Edwin Walker, Esq., his attorney,
and now comes on to be heard the demurrer of the plaintiffs to the
plea to the jurisdiction herein, and after hearing the arguments of
counsel, the court sustains the demurrer, to which ruling of the
court the defendant by his counsel excepts, and the defendant
failing to make further answer herein, and electing to abide by his
said plea, it is thereupon considered by the court that the
plaintiffs have and retain possession of the goods and chattels
described in the writ issued in this Court,"
&c.
This judgment Kern seeks to reverse in this Court.
The following are his assignments of error:
That the circuit court erred
1. In overruling the motion made by the plaintiff in error on
June 26, 1878, to dismiss the said cause.
2. In sustaining the demurrer to the special plea filed by the
plaintiff in error on Nov. 12, 1878.
3. In rendering judgment against the plaintiff in error upon the
demurrer.
4. The court had no jurisdiction over the subject matter of the
action.
The Circuit Court of Cook County and the circuit court of the
United States both claimed jurisdiction of the case, and each
rendered a final judgment -- the state court in favor of the
plaintiff in error, and the United States court in favor of the
defendants in error.
Most of the points raised upon the record will be solved by a
settlement of the question which court had jurisdiction of the case
when said final judgments were rendered.
Page 103 U. S. 490
The jurisdiction was, of course, originally in the state court.
It is unnecessary to decide whether the state court rightfully or
wrongfully denied the first two petitions of the defendants in
error for the removal of the cause. The petition for its removal,
filed July 6, 1877, contained every averment required by law. It
was filed at the proper time, and it was accompanied by a bond with
good and sufficient surety, conditioned according to the
statute.
According to the terms of the act of Congress, it was the duty
of the state court "to accept said petition and bond and proceed no
further in such suit." Act of March 3, 1875, c. 137, sec. 3; 18
Stat., pt. 3, p. 470.
Notwithstanding the refusal of the state court to make an order
for the removal of the cause, the defendants in error, within the
time prescribed by the statute, filed a transcript of the record of
the state court in the circuit court of the United States. This
invested the latter court with full and complete jurisdiction of
the case, for, in the language of the section just referred to,
"the said copy being entered as aforesaid in said circuit court
of the United States, the cause should then proceed in the same
manner as if it had been originally commenced in said circuit
court."
If the cause is removable and the statute for its removal has
been complied with, no order of the state court for its removal is
necessary to confer jurisdiction on the court of the United States,
and no refusal of such an order can prevent that jurisdiction from
attaching.
Insurance Company v.
Dunn, 19 Wall. 214.
It is therefore clear that when the defendants in error filed,
July 27, 1877, in the circuit court of the United States a
transcript of the record of the state court, the former acquired
and the latter lost jurisdiction of the case.
The contention of the plaintiff in error seems to be that an
action of replevin, where the sheriff of a state court is the
defendant, is not removable, because the sheriff, an officer of the
state court, being in possession of the property, the subject
matter of the controversy, the federal court is without legal
authority or power by writs, process, or orders to wrest its
possession from him.
Page 103 U. S. 491
There is no support either in the act of Congress for the
removal of causes nor in any case adjudged by this Court for this
position.
The act of Congress makes no exception of causes where the
subject matter of the controversy is in possession of the state
court. Under the Constitution and laws of the United States, a
citizen of the United States, party in a state court to a suit
which falls within the terms of the statute for the removal of
causes, has the right to have it removed to and heard by a United
States court.
Taylor v.
Carryl, 20 How. 583,
Freeman v.
Howe, 24 How. 450, and
Buck v.
Colbath, 3 Wall. 334, relied on by the plaintiff in
error, are not in point.
Those cases decide that property held by an officer of one court
by virtue of process issued in a cause pending therein, cannot be
taken from his possession by the officer of another court of
concurrent jurisdiction upon process issued in another case pending
in the latter court.
But here there is but one case. It is brought in the state
court. It falls within the terms of the act of Congress for the
removal of causes. When the prerequisites for removal have been
performed, the paramount law of the land says that the case shall
be removed, and the case and the res both go to the federal court.
The fact that the state court, while the case was pending in it,
had possession of the subject matter of the controversy cannot
prevent the removal, and when the removal is accomplished, the
state court is left without any case, authority, or process by
which it can retain possession of the
res. The suit and
the subject matter of the suit are both transferred to the federal
court by the same act of removal, or when a bond for the delivery
of the property has been taken, as in this case, the bond as the
representative of the property is transferred with the suit. There
is no interference with the rightful jurisdiction of the state
court and no wresting from its possession of property which it has
the right to retain.
If the contention of the plaintiff in error is that the state
court, having seized property by virtue of a
fieri facias
issued on a judgment rendered by it, the federal court cannot
take
Page 103 U. S. 492
such property from its possession by writ of replevin, or, in
other words, that the replevin suit which was sought to be removed
in this case could not have been originally brought in the federal
court, the answer is that upon the question of removal it is
entirely immaterial whether or not the suit, as an original action,
could have been maintained in the federal court. In short, no
provision of the state law, no peculiarity in the nature of the
litigation which would forbid the United States court from
entertaining original jurisdiction, could prevent the removal,
provided the case fell within the terms of the statute for the
removal of causes.
Railway Company v.
Whitton, 13 Wall. 270;
Insurance
Company v. Morse, 20 Wall. 445;
Gaines v.
Fuentes, 92 U. S. 10;
Boom Company v. Patterson, 98 U. S.
403.
The United States court having acquired jurisdiction, and that
state court lost it by the proper removal of the cause, has that
state court been reinvested with jurisdiction by the facts stated
in the plea to the jurisdiction filed by the defendant below --
namely that long after the removal of the cause to the United
States court, the plaintiffs below filed their replication in the
state court and prosecuted their action therein to a final hearing?
In other words, is the plea to the jurisdiction of the United
States court, filed by the defendant below on Nov. 12, 1878, a good
plea?
It has been expressly held by this Court that when a case has
been properly removed from a state into a United States court, and
the state court still goes on to adjudicate the case against the
resistance of the party at whose instance the removal was made,
such action on its part is a usurpation, and the fact that such a
party has, after the removal, contested the suit does not, after
judgment against him, constitute a waiver on his part of the
question of the jurisdiction of the state court to try the case.
Insurance Company v.
Dunn, 19 Wall. 214;
Removal Cases,
100 U. S. 457;
Railroad Company v. Mississippi, 102 U.
S. 135.
These cases are directly in point. In the action of replevin the
defendant, if he succeeds, recovers in effect the same judgment
against the plaintiff as the plaintiff, in case he succeeds,
recovers against the defendant. So that the plaintiffs, in
contesting
Page 103 U. S. 493
the suit in the state court after its removal, were seeking to
protect themselves against a judgment in favor of the defendant for
the return of the property in controversy, a judgment which was in
fact entered against them.
Our conclusion, therefore, is that by the proceedings for the
removal of this case, jurisdiction over it was transferred to the
United States circuit court, and the filing by the plaintiffs below
of a replication in the state court after such removal and the
prosecution of the action to a final hearing in that court did not
reinvest the state court with jurisdiction of the cause nor amount
to a waiver of any rights resulting to the plaintiffs from the
removal.
This conclusion is strengthened by the fact that the plaintiffs
constantly insisted, as the record shows, upon the jurisdiction of
the United States court over the case, and even while the case was
on final trial in the state court, procured the entry of an order
in the United States court to the effect that upon the filing of
the transcript of the record of the state court in the United
States court, the latter court acquired exclusive jurisdiction over
the case.
After the filing in the United States circuit court, on July 27,
1877, of the record of the proceedings in the state court, the
latter lost all jurisdiction over the case and, being without
jurisdiction, its subsequent proceedings and judgment were not, as
some of the state courts have ruled, simply erroneous, but
absolutely void.
Gordon v.
Longest, 16 Pet. 97;
Insurance
Company v. Dunn, 19 Wall. 214;
Virginia v.
Rives, 100 U. S. 313.
It only remains to consider the contention of the plaintiff in
error that the court below should not have entered judgment against
him after sustaining the demurrer to his plea to the jurisdiction
filed Nov. 12, 1878, because there was still remaining his plea to
the merits filed July 6, 1877, before the case was removed from the
state court.
The facts disclosed by the record make it clear that there is no
solid ground for this assignment to stand on.
The plea of Nov. 12, 1878, was a plea to the jurisdiction. The
defendant was allowed to file it on special leave asked by him and
given by the court.
Page 103 U. S. 494
The asking of leave to plead to the jurisdiction was in effect a
withdrawal of the plea to the merits, for after a plea in bar, the
defendant cannot plead to the jurisdiction of the court, for by
pleading in bar, he submits to the jurisdiction. 1 Chitty, Pleading
440, 441; Co.Lit. 303; Com.Dig., Abatement, C.; Bacon, Abr.,
Abatement (A.).
The plea in bar being in effect withdrawn by the plea to the
jurisdiction, when the demurrer to the latter was sustained, the
defendant was left without plea.
If the defendant had so desired, the judgment of the court would
have been
respondeat ouster. But he elected, as the record
shows, to stand by his demurrer, and declined to make any further
answer. There was nothing then left for the court to do but to
pronounce judgment against him, which was done.
There was no error in this. The suggestion that there should
have been a trial upon the plea in bar appears to have been an
afterthought.
There is no error in the record.
Judgment affirmed.