When a cause is properly removed from a state court to a federal
court, and the state court nevertheless proceeds with the case and
forces to trial the party upon whose petition the removal was made,
the proper remedy is by writ of error after final judgment, and not
by prohibition or punishment for contempt.
Insurance
Co. v. Dunn, 19 Wall. 214, and
Removal
Cases, 100 U. S. 457,
again reaffirmed.
This was a petition for an original process from this Court to
stay proceedings in the Circuit Court of Greenbrier County, West
Virginia, in a suit in which the defendant in these proceedings was
plaintiff and the plaintiff in these proceedings was defendant, on
the ground that the cause was removed to the federal courts under
the removal act, and that the substantial rights of the publics
were involved in a suit, pending in this Court, in error to the
Court of Appeals of West Virginia. The facts upon which the motion
was founded appear in the opinion of the Court.
Page 111 U. S. 135
MR. CHIEF JUSTICE WAITE delivered the opinion of the Court.
The motion papers in this case present the following facts:
On the 17th of September, 1881, A. E. White, as administrator of
the estate of John D. White, sued the Chesapeake and Ohio Railroad
Company in the Circuit Court of Greenbrier County, West Virginia.
The summons was returnable on the first Monday in October, and on
that day a declaration was filed. On the filing of the declaration,
an order was entered at rules that judgment be entered for the
plaintiff for his damages unless the defendant appear and plead to
issue on the first Monday in November. The defendant failing to
appear on that day, an order was entered, also at rules, for the
assessment of damages at the next term.
On the 10th of November, which was during the next term, the
defendant did appear and demur generally to the declaration, in
which the plaintiff joined. At the next term, on the 18th of April,
1882, the defendant again demurred to the declaration and to each
count thereof, and then presented a petition, with sufficient bond,
for the removal of the suit to the District Court of the United
States for the District of West Virginia, sitting at Charleston and
exercising circuit court powers. This petition the state circuit
court refused to receive, on the ground that it was not filed
before or at the term at which the issue could be first tried. The
defendant then pleaded not guilty and a special plea, and again
presented his petition and bond for the removal of the suit, which
was also refused and on the same ground.
On the first of May, the defendant filed in the district court
of the United States a copy of the record, and, on its motion, the
suit was docketed in that court. On the 29th of June, the plaintiff
moved the state circuit court to proceed with the trial of the
action, but this was refused on the ground that the case had been
docketed in the district court of the United States. On the 14th of
October, the plaintiff applied to the Supreme Court of Appeals of
the state for a mandamus requiring the circuit court to proceed
with the trial of the cause, and a rule
Page 111 U. S. 136
was awarded, directed to the judge of the circuit court,
returnable on the 10th day of the next regular term, calling on him
to show cause why a peremptory writ should not issue. On the 6th of
November, a judgement of nonsuit was entered in the district court,
the plaintiff having failed to appear and prosecute the original
action there. The rule of the court of appeals was served on the
judge of the circuit court on the 2d of December, 1882, and on the
railroad company on the 4th of the same month.
On the 10th of January, 1883, the railroad company filed its
bill in equity in the district court of the United States against
White, as administrator, to enjoin him from proceeding any further
with his application for mandamus in the court of appeals, and on
the 12th of the same month a preliminary injunction was granted as
prayed for.
On the 30th of June, 1883, a judgment was entered by the court
of appeals awarding a peremptory mandamus, both the judge and the
railroad company having answered the rule on the 20th of January
previous. From this judgment a writ of error was taken to this
Court and a bond accepted which operated as a supersedeas. That
writ was docketed here on the 30th of July.
At the November term, 1883, of the Circuit Court of Greenbrier
County, White, the plaintiff in the original suit, applied for a
trial of his action. To this the railroad company defendant
objected. The court declined to proceed to a trial at that term,
but entered an order that it would proceed at the next term, which
will begin on the 21st of April, 1884. The railroad company
thereupon filed its petition in this Court, praying
"for a writ of prohibition, or such other process as may be
deemed appropriate, directed to the circuit court of Greenbrier
County, West Virginia, and to the Honorable Homer A. Holt, judge of
said court, and to the said A. E. White, administrator as
aforesaid, and to Alexander F. Matthews, attorney of said White,
prohibiting them, and each of them or such of them as may be
thought proper, from any and all further proceedings in the action
aforesaid until the final disposition of the aforesaid writ of
error by the Supreme Court of the United States,
Page 111 U. S. 137
and for such other proceedings and process as the circumstances
may require and justify."
We can find no authority for any such action in this Court as is
here prayed. Our proceedings in this suit must be confined to such
as relate to a review of the judgment of the court of appeals and
the enforcement of any order we may make upon the final hearing. If
we affirm the judgment, the writ awarded by the court of appeals
can issue; if we reverse, it cannot. The supersedeas does not
operate on the state circuit court so as to prevent it from
proceeding, nor on White to prevent him from applying to that court
for a trial; it simply prevents the use of the process of the court
of appeals, under the judgment awarding the writ, to compel the
circuit court to go on. A supersedeas stays the execution of the
judgment which is under review. Anything short of an effort to
enforce the judgment will not amount to a contempt of the authority
of the reviewing court. If the judgment of the court of appeals
should be reversed in this Court and a mandamus refused, White
would not be guilty in law of contempt if, notwithstanding the
refusal, he applied again to the circuit court to proceed with the
trial.
The judgment of this Court would not be a prohibition to that
court against proceeding, but only a refusal to order it to
proceed. Our judgment could be appealed to as authority for
refusing a trial, but not as a command that it should be
refused.
The circuit court, when, in June, 1882, it declined to order a
trial, did not abandon its jurisdiction. It still retained the suit
so far as any action of its own was concerned. If a sufficient for
removal was made in the circuit court the rightful jurisdiction of
that court is gone, and it cannot properly proceed further, but if
it does proceed and does force the defendant, who applied for the
removal, to a trial, the remedy is by a writ of error after final
judgment, and not by prohibition or punishment for contempt. The
proper practice in such cases was fully considered in
Insurance Company v.
Dunn, 19 Wall. 214;
Removal Cases,
100 U. S. 457;
Railroad Company v. Mississippi, 102 U.
S. 135;
Railroad Company v. Koontz,
104 U. S.
51.
If the suit in the court of appeals for mandamus is to be
Page 111 U. S. 138
deemed part of the original suit in the circuit court, and not
an independent proceeding, we have no jurisdiction of the writ of
error which has been taken, because the judgment of the court of
appeals is not a final judgment in the action. If it is an
independent suit, the writ of error gives us no more control over
the circuit court, so as to stop its proceeding in the original
suit, than it does over the district court to prevent it from
punishing White for a violation of the injunction allowed against
his application to the court of appeals for a mandamus.
The petition is denied, with costs.