Where the case goes more than once to the highest court of the
state, only the last judgment is the final one.
Where the highest court of the state reverses an order of an
inferior state court removing a cause and remands the case to the
state court for trial, and, after trial and verdict for plaintiff,
the judgment is sustained by the highest court, the last judgment
is the only final one to which the writ of error will run from this
Court; defendant cannot
Page 213 U. S. 208
prosecute a writ of error to the judgment remanding the cause.
Schlosser v. Hemphill, 198 U. S. 173.
The United States Circuit Court has jurisdiction to determine
for itself the removability of a cause, and may take jurisdiction
thereof and protect such jurisdiction even though the state court
refuse to make the removal order, and a final judgment, rendered by
and under such conditions by the Circuit Court, cannot be reviewed
by the state court, but such judgment is binding on the state court
until reversed by this Court.
While a petitioner, if the state court denies his petition for
removal, may remain in that court and bring the case here for
review on writ of error after final judgment, he is not obliged so
to do, but may file the record in the Circuit Court, and that court
has jurisdiction to determine the question of removability and,
notwithstanding § 720, Rev.Stat., it may protect its jurisdiction
by injunction against further proceedings in the state court.
Traction Co. v. Mining Co., 196 U.
S. 239.
A judgment rendered by the Circuit Court under such conditions
is not void even if jurisdiction be improperly assumed and
retained, as the jurisdictional question can be reviewed by this
Court, and, until reversed, the judgment is binding on the state
court and cannot be treated as a nullity.
Dowell v.
Appelgate, 152 U. S. 327.
This action was brought September 27, 1901, by the defendant in
error in the Mason County Circuit Court of Kentucky against the
Chesapeake & Ohio Railway Company, a Virginia corporation, and
the Maysville & Big Sandy Railroad Company of Kentucky, to
recover damages for the death of her intestate, by the negligence,
as it is alleged, of the Chesapeake & Ohio Railroad Company, in
operating one of its trains over a railroad track which had been
leased to it by the other company.
The allegations of the petition in substance are that the
intestate of defendant in error received injuries which caused his
death by being negligently run into by a train operated by the
Chesapeake & Ohio Railway Company. And negligence is charged
against the Maysville & Big Sandy Railroad Company, in
permitting its tracks to be used by the other company. It alleges
that, more than twelve months before the injuries to her intestate,
the Maysville & Big Sandy Railroad Company
Page 213 U. S. 209
leased and transferred its entire line to the Chesapeake &
Ohio Railway Company, and that the latter has had since that time
the exclusive possession and control of it; that, by the laws of
Kentucky, the lease and transfer were
ultra vires and
void; that in December, 1893, under § 211 of the Constitution of
Kentucky, and under § 841 of the statute of the state, the
Chesapeake & Ohio Railway Company became a corporation,
citizen, and resident of the state, by filing in the office of the
Secretary of State, and in the office of the Railroad Commissioner,
copies of its articles of incorporation, and that thereupon a
certificate of incorporation was issued to it by the Secretary of
State. The petition further alleges that the railroad track was
laid in Third Street, in Maysville, under an ordinance from the
city authorities; that the railroad occupied the whole street, so
as to render, it unfit for travel by wagons or vehicles; that the
city authorities were without power to authorize such use of the
street, and that the ordinance was void, and the operation of the
trains on the street was illegal.
On December 11, 1901, the Chesapeake & Ohio Railroad Company
filed a petition to remove the action to the Circuit Court of the
United States for the Eastern District of Kentucky. The petition
set up that the Chesapeake & Ohio Railroad Company was a
Virginia corporation; that the suit was of a civil nature; that the
amount involved exceeded $2,000; that in the suit there was a
controversy which was wholly between citizens of different states,
to-wit, between the Chesapeake & Ohio Railroad Company, a
citizen of Virginia, and the plaintiff in the suit, who was a
citizen of the State of Kentucky. It was further alleged that the
Maysville & Big Sandy Railroad Company was not a necessary
party to the suit, but was made a defendant therein "for the sole
and simple purpose" of preventing the Chesapeake & Ohio
Railroad Company from removing the suit to the circuit court of the
United States, and thereby unlawfully, wrongfully, and fraudulently
depriving it of a right conferred by the Constitution and laws of
the United States.
Page 213 U. S. 210
Petitioner quotes all the allegations of the plaintiff
connecting the Maysville & Big Sandy Company with liability,
and avers that "each and all of them" were "untrue and palpably so,
and were known to the plaintiff to be untrue" when made in the
original and amended petition. Petitioner alleges that, by reason
of its charter and amendments thereto, and partly of the Act of
February 17, 1866, entitled, "An Act Authorizing the Sale of the
Maysville & Big Sandy Railroad, and Providing for the
Organization of a New Company under Its Charter to Construct Said
Road" (Session Acts 1866, page 644), and of the General Laws of the
State of Kentucky, the Maysville & Big Sandy Railroad Company,
which petitioner states was recognized under said act and laws,
before the making of said contract and lease, had full authority to
make the same, and that petitioner was operating the railway under
the same at the time of the injury complained of. And the
petitioner finally
"charges and avers that the allegations of the plaintiff's
petition and amended petition, hereinbefore recited and
controverted, were made, and its codefendant was made defendant to
this action, and was sued for the injury complained of herein, for
the sole and fraudulent purpose of depriving this defendant of the
right to remove this action to the federal court for the Eastern
District of Kentucky, and of depriving that court of its
jurisdiction."
The petition was granted, and the clerk of the court, on the
fourteenth of December, 1901, was directed to make up the record of
said cause for transmission to the Circuit Court of the United
States for the Eastern District of Kentucky. The plaintiff in the
case excepted to the order and subsequently made a motion to set it
aside, which was denied. An appeal from the order to the Court of
Appeals was immediately granted, which court, on the fifth of
March, 1902, reversed the order and remanded the case for trial.
112 Ky. 861. The trial was had and the jury instructed by the court
to find in favor of the defendant. This judgment was reversed by
the Court of Appeals. 28 Ky. 536. Another trial was had,
resulting
Page 213 U. S. 211
in a verdict and judgment for plaintiff in the sum of $2,500.
The judgment was sustained by the Court of Appeals. 30 Ky. 1009. To
this judgment the writ of error in the present case was taken.
The record further shows that, after the appeal from the order
of removal, plaintiff in error filed a transcript of the record in
the Circuit Court of the United States for the Eastern District of
Kentucky, and the case was duly docketed. After the decision of the
Court of Appeals of Kentucky, reversing the order of the Mason
county circuit court, removing the case to the circuit court of the
United States, plaintiff filed in the latter court a motion to
remand the case to the state court. On October 19, 1903, that
motion was overruled.
On April 4, 1904, the Chesapeake & Ohio Railroad Company
filed in the circuit court of the United States its answer to the
petition of the plaintiff, and on motion of the latter the cause
was set down for trial April 12. On the latter date, the Chesapeake
& Ohio Railroad Company moved for judgment of dismissal of the
suit on the face of the pleadings. This motion was granted, and
also a demurrer of the Maysville & Big Sandy Railroad Company
was sustained to the petition, and judgment rendered.
On November 17, 1903, plaintiff in error offered for filing an
answer in the Mason County Circuit Court, which set up the petition
for removal, and the order thereon, removing the cause to the
circuit court of the United States, the filing in the latter court
of the transcript of the record and the docketing of the cause the
thirteenth of January, 1902. The answer alleged also that, on
motion of the defendants, a rule was issued against the plaintiff
to show cause why she should not be required to give bond for costs
or make a deposit of money in lieu thereof, that the plaintiff
filed a response thereto, and, after the decision of the Court of
Appeals of Kentucky, reversing the order removing the cause to the
circuit court of the United States, appeared by her counsel in the
latter court, filed a petition to remand the case to the state
court, a brief in support thereof, the opinion
Page 213 U. S. 212
of the Court of Appeals, and that, on the nineteenth of October,
1903, the motion was denied.
The motion to file the answer was denied by the state court,
but, by order of the court, it was made part of the record.
Notwithstanding the judgment of April 12, 1904, of the circuit
court of the United States, dismissing the action, the case
remained on the docket of the state court, and, before it was
called for trial again, the defendants therein (plaintiffs in error
here) tendered an amended answer, setting out all the proceedings
in the circuit court of the United States, attaching thereto copies
of the judgments of that court, and alleging that they were in
"force and effect unreversed," and pleaded "the same to plaintiff's
recovery against them and each of them in said action." The court
refused to let the answer be filed, but ordered that it be made
part of the record.
Page 213 U. S. 213
MR. JUSTICE DAY delivered the opinion of the Court.
From the foregoing statement, it is apparent that the
principal
Page 213 U. S. 214
question in this case, and it is the one which we regard as
decisive of it, concerns the effect of the judgment rendered in the
circuit court of the United States after it had taken jurisdiction,
which was undertaken to be set up in the state court as a bar to
further proceedings therein. It is contended by the defendant in
error that, when the Court of Appeals of Kentucky rendered its
judgment holding that the case was not a removable one (March 5,
1902), that was a final judgment upon the question of jurisdiction,
and the case should have been brought here for review and
determination. But we are of opinion that this contention is not
tenable. The case was three times in the Court of Appeals of
Kentucky, and only the last judgment in that court was a final one.
As we have seen, the state circuit court, in which the action was
originally begun, held the case was a removable one, and from that
order an appeal was prosecuted to the Court of Appeals of Kentucky,
that court, concluding that both railroads could be properly joined
in the action, held that the case was not removable, and remanded
the same to the state court for further proceedings.
Upon the second appeal, the judgment for the defendant below was
reversed, and the cause remanded for a new trial. Upon the third
trial, a judgment was rendered in favor of the plaintiff below for
damages, which was affirmed in the Court of Appeals of Kentucky, to
which judgment this writ of error is prosecuted. Nor is it material
that the state supreme court regarded itself as bound by the
decision in the former appeal as the law of the case and declined,
in the judgment now under review, to again consider the question.
The judgment under review was the only final judgment in the
appellate court of the state from which plaintiff in error could
prosecute a writ of error, and, until such final judgment, the case
could not have been brought here for review.
Schlosser v.
Hemphill, 198 U. S. 173, and
cases therein cited.
The circuit court of the United States, having taken
jurisdiction of the case upon the removal, and having refused to
remand it and proceeded to final judgment, should the state
Page 213 U. S. 215
court, when that judgment was offered to be pleaded before it,
have given effect to the judgment? That is the federal question
presented in this case. It is insisted for the defendant in error
that the right of removal depends upon the presentation to the
state court of a proper petition for removal, which petition should
contain the essential allegations necessary to make out a case
under the statute for that purpose, and that, unless this is done,
the jurisdiction of the state court is not divested. And in aid of
that contention, cases are cited which hold that a plaintiff has
the right to make a cause of action joint when acting in good
faith, and when he has so made it, the action is deemed to be joint
for the purpose of determining the right of removal.
Alabama
Great Southern Railway Co. v. Thompson, 200 U.
S. 206;
Cincinnati, New Orleans & Texas Pacific
Railway Co. v. Bohon, 200 U. S. 221. And
inasmuch as the state court has held that the Maysville & Big
Sandy Railroad Company, under the law of Kentucky, could be
properly joined as defendant with the Chesapeake & Ohio Railway
Company in this case, it is insisted that the plaintiff had a right
to sue both companies, and that the averment in the petition for
removal, that the joinder was fraudulent, goes for nothing in the
absence of a showing of facts which makes such joinder fraudulent
in fact.
Wecker v. National Enameling & Stamping Co.,
204 U. S. 176.
It is insisted that this contention is supported by a line of
cases in this Court which have held that a state court is not bound
to surrender its jurisdiction until a petition for removal has been
filed which, upon its face, shows that the petitioner has a right
to the transfer of the cause. And it is contended that the petition
in this case, in view of the decision of the Court of Appeals of
Kentucky as to the right to prosecute a joint cause of action, did
not make a case for removal, and therefore the state court did not
lose its jurisdiction. To maintain the general proposition that a
petition making a case for removal upon its face is essential to
confer jurisdiction upon the United States circuit court, attention
is called to a number of cases decided in this Court:
Stone v.
South Carolina, 117 U.S;
Carson v.
Page 213 U. S. 216
Hyatt, 118 U. S. 279;
Stevens v. Nichols, 130 U. S. 230;
Crehore v. Ohio & Mississippi Railway Co.,
131 U. S. 240;
Jackson v. Allen, 132 U. S. 27;
Graves v. Corbin, 132 U. S. 571.
In these cases, the jurisdiction of the state courts was
maintained for the want of an adequate petition showing facts which
required an order of removal. In none of them was involved the
effect of the judgment of a United States circuit court taking
jurisdiction upon removal, unreversed and in full force and effect.
That the circuit court of the United States may determine the
question of the right of removal is conclusively shown by the terms
of the statute governing the subject. In § 3 of the removal act (1
Comp.Stat. 510), it is provided that, a petition and bond being
entered in the circuit court of the United States, the cause shall
proceed in the same manner as if it had originally been commenced
in the circuit court. And in § 5 of the act, it is provided that
the circuit court of the United States may at any time that it
appears that it does not really and substantially involve a dispute
or controversy properly within the jurisdiction of the circuit
court, or that the parties to the suit have been improperly and
collusively joined for the purpose of creating a case removable
under the act, remand and dismiss the same as justice may require.
Section 7 of the act of 1875 (1 Comp.Stat. 512) provides that a
circuit court, in any case removable under the act, shall have
power to issue a writ of certiorari to the state court, commanding
that court to make return of the record in any cause removed as
aforesaid, or in which any one or more of the plaintiffs or
defendants have complied with the provisions of the act for the
removal of the same, and enforce such writ according to law.
It is apparent that these provisions are intended to confer
jurisdiction upon the United States circuit court to determine for
itself the removability of a given cause, and it has been
accordingly held in this Court that, notwithstanding the refusal of
the state court to remove the case, the party desiring the removal
may file a transcript of the record in the circuit court of the
United States, and, if the case was a removable one, it is
Page 213 U. S. 217
immaterial that the state court has denied the petition for
removal.
Kern v. Huidekoper, 103 U.
S. 485, and cases therein cited. And it was held in
Traction Co. v. Mining Co., 196 U.
S. 239, that notwithstanding the refusal of the state
court to make an order of removal, the controversy being removable
to the United States circuit court, that court might protect its
jurisdiction by injunction against further proceedings in the state
court.
In view of these provisions of the statute, and the decisions of
this Court construing the same, we think it was the intention of
Congress to confer upon the circuit court of the United States a
right to determine the removability of a cause, independently of
the jurisdiction and determination of the state courts. And while
it is true that, when the judgment of a state court is under
consideration, it may properly be held that the courts of the state
are not obliged to surrender their jurisdiction until a petition is
filed making a proper ground for removal, it does not follow that,
when the jurisdiction of the circuit court of the United States is
invoked, its judgment holding a case removable and rendering a
final judgment therein can be disregarded by the state court where
it is properly set up before judgment, as was done in the present
case. If this be not so, the state court may ignore an unreversed
judgment of the United States circuit court deciding a question of
federal jurisdiction within the power conferred upon it by
Congress, and wherein it was intended to give to the state court no
right to review such action, and wherein the judgment is binding
until properly reversed in this Court, in which the question of
jurisdiction can alone be finally settled, whether brought here
from a state or federal court.
The circuit court of the United States having an independent
jurisdiction to determine the removability of the cause, what is
the proper procedure when, as has sometimes happened, the federal
court differs from the state court upon this question? This
question was dealt with in
Railroad Company v. Koontz,
104 U. S. 5,
104 U. S. 15,
wherein Mr. Chief Justice Waite, speaking for the Court, said:
Page 213 U. S. 218
"The right to remove is derived from a law of the United States,
and whether a case is made for removal is a federal question. If,
after a case has been made, the state court forces the petitioning
party to trial and judgment, and the highest court of the state
sustains the judgment, he is entitled to his writ of error to this
Court if he saves the question on the record. If a reversal is had
here on account of that error, the case is sent back to the state
court with instructions to recognize the removal, and proceed no
further. Such was, in effect, the order in
Gordon v.
Longest, 16 Pet. 97. The petitioning party has the
right to remain in the state court under protest, and rely on this
form of remedy if he chooses, or he may enter the record in the
circuit court and require the adverse party to litigate with him
there, even while the state court is going on. This was actually
done in
Removal Cases, 100 U. S. 457. When the suit is
docketed in the circuit court, the adverse party may move to
remand. If his motion is decided against him, he may save his point
on the record, and, after final judgment, bring the case here for
review, if the amount involved is sufficient for our jurisdiction.
If, in such a case, we think his motion should have been granted,
we reverse the judgment of the circuit court, and direct that the
suit be sent back to the state court, to be proceeded with there as
if no removal had been had. If the motion to remand is decided by
the circuit court against the petitioning party, he can at once
bring the case here by writ of error or appeal for a review of that
decision, without regard to the amount in controversy.
Babbitt
v. Clark, 103 U. S. 606. If, in such a
case, we reverse the order of the circuit court to remand, our
instructions to that court are, as in
Relfe v. Rundle,
103 U. S.
222, to proceed according to law, as with a pending suit
within its jurisdiction by removal."
So far as the case now before us is concerned it is immaterial
that, under the act of March 3, 1887, the decision of a circuit
court of the United States remanding a case to the state court is
final.
Missouri Pacific Railway Company v. Fitzgerald,
160 U. S. 556.
Page 213 U. S. 219
Again, speaking for the Court on the same subject in
Burlington &c. Railway Co. v. Dunn, 122 U.
S. 513,
122 U. S. 516,
Mr. Chief Justice Waite said:
"But even though the state court should refuse to stop
proceedings, the petitioning party may enter a copy of the record
of that court, as it stood on the filing of his petition in the
circuit court, and have the suit docketed there. If the circuit
court errs in taking jurisdiction, the other side may bring the
decision here for review, after final judgment or decree, if the
value of the matter in dispute is sufficient in amount."
From these decisions, it is apparent that, while the petitioner,
in the event of an adverse decision in the state court, may remain
in that court, and, after a final judgment therein, bring the case
here for review, he is not obliged to do so. He may file the record
in the circuit court of the United States, as was said by Mr. Chief
Justice Waite, while the case is going on in the state court. The
federal statute then gives to the United States circuit court
jurisdiction to determine the question of removability, and it has
the power, not given to the state court, to protect its
jurisdiction, notwithstanding § 720 of the Revised Statutes, by an
injunction against further proceedings in the state courts.
Traction Company v. Mining Company, 196 U.
S. 239.
In order to prevent unseemly conflict of jurisdiction, it would
seem that the state court in such cases should withhold its further
exercise of jurisdiction until the decision of the circuit court of
the United States is reviewed in this Court. If the federal
jurisdiction is not sustained, the case will be remanded with
instructions that it be sent back to the state court as if no
removal had been had.
Railroad Company v. Koontz,
supra.
Conceding that, except for the principle of comity, the state
court may decide the question of jurisdiction for itself, in the
absence of an injunction from the federal court in aid of its own
jurisdiction, or a writ of certiorari requiring the state court to
surrender the record under the act of 1875, is the state court
obliged to give effect to the judgment of the United States
circuit
Page 213 U. S. 220
court, from which no writ of error is taken, and rendered in the
federal court after it has sustained its own jurisdiction and
refused to remand the action?
In view of the fact that the question is a federal one, and that
the state court is given no right to review or control the exercise
of the jurisdiction of the federal court, we think that such
federal judgment cannot be ignored in the state court as one
absolutely void for want of jurisdiction, and that such judgment,
until reversed by a proper proceeding in this Court, is binding
upon the parties, and must be given force when set up in the
action. This view is sustained in the former decisions of this
Court upon the subject. In
Des Moines Navigation Company v.
Iowa Homestead Company, 123 U. S. 552,
this Court considered the effect of a judgment rendered in the
federal court upon removal from the state court. In that case, it
appeared that the federal court ought not in fact to have taken
jurisdiction, for it appeared upon the face of the record that some
of the defendants who did not join in the petition for removal were
citizens of the same state as the plaintiff. The state court of
Iowa refused to give effect to the judgment of the federal court,
and its judgment was reversed. Mr. Chief Justice Waite, speaking
for the Court, said (p.
123 U. S.
559):
"Whether in such a case the suit could be removed was a question
for the circuit court to decide when it was called on to take
jurisdiction. If it kept the case when it ought to have been
remanded, or if it proceeded to adjudicate on matters in dispute
between two citizens of Iowa when it ought to have confined itself
to those between the citizens of Iowa and the citizens of New York,
its final decree in the suit could have been reversed, on appeal,
as erroneous, but the decree would not have been a nullity. To
determine whether the suit was removable in whole or in part or not
was certainly within the power of the circuit court. The decision
of that question was the exercise, and the rightful exercise, of
jurisdiction, no matter whether in favor of or against taking the
cause. Whether its
Page 213 U. S. 221
decision was right, in this or any other respect, was to be
finally determined by this Court on appeal."
In
Dowell v. Applegate, 152 U.
S. 327, the benefit of a judgment in the circuit court
of the United States was claimed. That judgment was the basis of a
conveyance to the plaintiff in error, and it was contended that the
conveyance was void, inasmuch as the federal court had no
jurisdiction of the suit in which the sale was ordered. It was held
in this Court that, even if the federal court erred in assuming or
retaining jurisdiction of the suit, its decree, being unmodified
and unreversed, could not be treated as a nullity. After citing
previous decisions of this Court, the Court, speaking through Mr.
Justice Harlan, said (p.
152 U. S.
340):
"These cases establish the doctrine that, although the
presumption in every stage of a cause in a circuit court of the
United States is that the court is without jurisdiction unless the
contrary affirmatively appears from the record (
Bors v.
Preston, 111 U. S. 252,
111 U. S.
255, and the authorities there cited), yet, if such
jurisdiction does not so appear, the judgment or final decree
cannot, for that reason, be collaterally attacked, or treated as a
nullity."
"These authorities, above cited, it is said, do not meet the
present case, because the ground on which, it is claimed, the
federal court assumed jurisdiction, was insufficient in law to make
this case one arising under the laws of the United States. But that
was a question which the circuit court of the United States was
competent to determine in the first instance. Its determination of
it was the exercise of jurisdiction. Even if that court erred in
entertaining jurisdiction, its determination of that matter was
conclusive upon the parties before it, and could not be questioned
by them, or either of them, collaterally, or otherwise than on writ
of error or appeal to this Court."
Applying these principles to the case at bar, we think the state
court erred in refusing to give effect to the judgment set up in
the answer offered in the state court. When the application for
removal was made in the state circuit court, that court
Page 213 U. S. 222
held the case removable, and the record was filed in the federal
court. Afterwards that court, upon the application of the
plaintiff, refused to remand the suit, and proceeded to a final
determination thereof, and rendered judgment accordingly.
It is not necessary to determine whether the case was removable
or not. The federal court was given jurisdiction to determine that
question, it did determine it, and its judgment was conclusive upon
the parties before it until reversed by a proper proceeding in this
Court. Instead of bringing the case here, the plaintiff proceeded
in the state court, and that court denied effect to the federal
judgment. The plaintiff in error lost no right when thus compelled
to remain in the state court, notwithstanding the federal judgment
in its favor, and brought the suit here by writ of error to the
final judgment of the state court, denying its right secured by the
federal judgment. It was open to the plaintiff to bring the adverse
decision of the federal court on the question of jurisdiction to
this Court for review. This course was not pursued, but the action
proceeded in the state court, evidently upon the theory that the
judgment of the federal court was a nullity if it had erred in
taking jurisdiction. For the reasons stated we think this
hypothesis is not maintainable.
The judgment of the Court of Appeals of Kentucky is reversed
and the cause is remanded for further proceedings not inconsistent
with this opinion.
Dissenting: MR. JUSTICE McKENNA.
