It is within the discretion of the court, after overruling a
general demurrer to a declaration or complaint as not stating facts
which constitute a cause of action, to enter final judgment on the
demurrer, and such judgment if entered may be pleaded in bar to any
other suit for the same cause of action.
As a demurrer to a complaint because it does not state facts
sufficient to constitute a cause of action raises an issue which
involves the merits, a trial of the issue raised by it is a trial
of the action within the meaning of § 3 of the Act of March 3,
1875, 18 Stat. 471, relating to the time within which causes may be
removed from state courts.
Yannevar v.
Bryant, 21 Wall. 41;
Insurance
Co. v. Dunn, 19 Wall. 214;
Kinq v.
Worthington, 104 U. S. 44;
Hewitt v. Phelps, 105 U. S. 393,
distinguished from this ease.
Miller v. Tobin, 18 F. 609,
overruled.
The only question argued and decided in this case was whether
the cause was properly removed from the state court under the
Removal Act after a general demurrer to the complaint for showing
no cause of action had been heard and overruled
Page 111 U. S. 473
with leave to answer and answers had been filed. The facts
appear more at length in the opinion of the Court.
MR. CHIEF JUSTICE WAITE delivered the opinion of the Court.
This is an appeal from an order of the circuit court remanding a
case removed from a state court. The suit was begun on the second
of March, 1883, in the Supreme Court of New York by Eliphalet Nott,
a citizen of New York, for himself and all others who should come
in and be made parties to the action and contribute to the
expenses, against Las Nueve Minas de Santa Maria Gold and Silver
Mining Company, a New York corporation, John B. Alley, a citizen of
Massachusetts, and certain other persons, some of whom were
citizens of Illinois, and others, citizens of New York. Nott was
the holder of three hundred shares of the stock of the mining
company, and the several individual defendants were trustees and
directors. The prayer of the complaint was in substance that the
individual defendants might be adjudged to be trustees as to the
amount in money represented by one million shares of the capital
stock of the company, and collectively and severally decreed to
account concerning the same, and that they might also be severally
adjudged to account for the gains and profits received by each of
them from the sale of the stock.
The summons required an answer to the complaint within twenty
days after its service. Two of the defendants were
Page 111 U. S. 474
never served, and they have never appeared. Four of the
individual defendants, including Alley, appeared on the 29th of
March, and filed separate demurrers to the complaint on the ground
"that it did not state facts sufficient to constitute a cause of
action." On the 9th of June, during a special term of the court
begun on the first of that month, "the issues of law raised by the
demurrers of the defendants . . . having been brought on for
trial," and argued by counsel, it was
"ordered that the said demurrers be overruled, and that the
plaintiff have judgment thereon accordingly for costs, with leave
to said defendants demurring, within twenty days to withdraw said
demurrer and answer the complaint upon payment of costs,"
and that if the defendants fail to withdraw their demurrers and
answer within the time allowed, a final judgment be entered against
them for the relief to which the plaintiff is entitled; the form of
the judgment to be settled by the judge. On the 13th of June, all
the defendants who had demurred gave notice of appeal to the
general term of the court. On the 23d of June the defendants gave
notice that they would move on the 1st of July for a stay of
execution on the interlocutory judgment until the appeal could be
heard, and on the 29th of June, the time for answering the
complaint was extended until ten days after the determination of
this motion. On the 13th of July another of the defendants appeared
and filed a demurrer to the complaint. On the 1st of August, the
defendants who had appealed withdrew their appeals and also their
respective demurrers, and paid the costs awarded to the plaintiff
by the interlocutory decree and the costs of the appeal. Separate
answers were filed on the same day by each of the several
individual defendants whose demurrers had been overruled, and on
the next day, August 2, Alley presented to the court a petition for
the removal of the suit to the Circuit Court of the United States
for the Southern District of New York. In this petition, the
citizenship of Nott, the company, and Alley are stated, and it is
then averred,
"That the controversy in this suit or action, so far as it
respects or is between the plaintiff individually or as
representing the said mining company and this petitioner, is wholly
between citizens
Page 111 U. S. 475
of different states, and that the same can be fully determined
and a final determination of the controversy in said action can be
had, so far as concerns the plaintiff and this petitioner, without
the presence of either of the other defendants or parties in said
cause."
It is then stated "that since the service of said answer, there
has been no term of the court at which this action could have been
tried."
The suit was docketed in the circuit court at once, and on the
11th of October, a motion was made to remand. This motion was
granted on the 21st of December, and from an order to that effect,
the appeal was taken.
In our opinion, the petition for removal was not filed in time.
The statute requires the filing to be "at or before the term at
which said cause could be first tried, and before the trial
thereof." By the New York Code of Civil Procedure, issues are of
two kinds: 1, of law; 2, of fact. Sec. 963. An issue of law arises
only on a demurrer. Sec. 964. A demurrer to a complaint may be,
among other things, because "the complaint does not state facts
sufficient to constitute a cause of action." Sec. 488. Upon the
decision of a demurrer, either at a general or special term or in
the Court of Appeals, the court may, in its discretion, allow the
party in fault to plead anew or amend on such terms as may be just.
Sec. 497. An issue of law in the supreme court must be tried at a
term held by one judge. Sec. 976. At any time after the joinder of
issue, either party may serve a notice for trial. Sec. 977.
A demurrer to a complaint because it does not state facts
sufficient to constitute a cause of action is equivalent to a
general demurrer to a declaration at common law, and raises an
issue which, when tried, will finally dispose of the case as stated
in the complaint on its merits unless leave to amend or plead over
is granted. The trial of such an issue is the trial of the cause as
a cause, and not the settlement of a matter of form in proceeding.
There can be no other trial except at the discretion of the court,
and if final judgment is entered on the demurrer, it will be a
final determination of the rights of the parties which can be
pleaded in bar to any other suit for the same cause of action.
Under such circumstances, the trial
Page 111 U. S. 476
of an issue raised by a demurrer which involves the merits of
the action is, in our opinion, a trial of the action within the
meaning of the Act of March 3, 1875. To allow a removal after such
a trial would be to permit "a party to experiment on his case in
the state court and, if he met with unexpected difficulties, stop
the proceedings and take the suit to another tribunal." This, as
was said in
Removal Cases, 100
U. S. 473, could not have been the intention of
Congress. In effect, when this case was heard on the demurrer, the
issue made by the pleadings, and on which the rights of the parties
depended, was submitted to the court for judicial determination.
This issue the court decided, but, before entering final judgment,
granted a new trial with leave to amend pleadings. The situation of
the case at this time, for the purposes of removal, was precisely
the same as it would be if the trial, instead of being on an issue
of law involving the merits, had been on an issue of fact to the
jury and the court had, in its discretion, allowed a new trial
after verdict. We can hardly believe it would be claimed that a
removal could be had in the last case, and in our opinion it cannot
in the first.
The case of
Vannevar v.
Bryant, 21 Wall. 41,
88 U. S. 43,
arose under the Act of March 2, 1867, c. 196, which allowed a
removal at any time "before the final hearing or trial of the
suit," and what is there said is to be construed in connection with
that fact. The same is true of
Insurance Company v.
Dunn, 19 Wall. 214. In
King v.
Worthington, 104 U. S. 44, and
Hewitt v. Phelps, 105 U. S. 393,
105 U. S. 395,
the questions were as to the time when a case could be removed that
was begun before the act of 1875 was passed. In
Lewis v.
Smythe, 2 Woods 117, the question here presented was not
involved, and the removal was decided to be too late because it was
not applied for until after a trial on the issues of fact had
begun. In
Miller v. Tobin, 18 F. 609, the experienced
district judge for the district of Oregon did hold that a removal,
applied for after hearing upon a demurrer to a complaint, because
it did not state facts sufficient to constitute a cause of action,
could be had, but on full consideration we are unable to reach that
conclusion.
Without deciding whether Alley would have been entitled
Page 111 U. S. 477
to a removal if his petition had been filed in time, we affirm
the order to remand on the ground taken by the circuit judge, that
the application for removal was not made "before the trial" within
the meaning of that term as used in the act of 1875.
Affirmed.