Even though the record may present in form a federal question,
the writ of error will be dismissed if it plainly appear that the
federal question is so unsubstantial and devoid of merit as to be
frivolous.
In this case, the only federal question was based on the refusal
of
Page 226 U. S. 103
the state court to remove the cause as to the nonresident
defendants on the ground of fraudulent joinder of the resident
defendant, and is frivolous as shown by the fact that the trial
court refused to nonsuit as to the resident defendant, and there
was a verdict against all.
Where the case is not removable before trial, plaintiff has the
right to have the issues of fact and law raised determined in the
state court having jurisdiction, and the power of the state court
to so determine cannot be destroyed by defendants' claim that, if
the evidence had been rightly weighed, the decision would have been
different.
Where the state court has jurisdiction, the federal court cannot
deny the state court the right to exercise it.
The unsubstantial and frivolous character of the only federal
question presented in this case embraces the conclusion that the
writ was prosecuted for delay.
The power which this Court can exercise under one of its own
rules depends upon the statute on which the rule is based.
Under Rule 23, which is based on § 1010, Rev.Stat., this Court
has the same power to award damages for delay where the writ of
error is dismissed as where there is judgment of affirmance, and in
this case, five percent damages are imposed in addition to
costs.
Writ of error to review 62 Wash. 455 dismissed.
The facts, which involve the jurisdiction of this Court of writs
of error to state courts and the power of this Court to award
damages for delay where the writ of error is dismissed, are stated
in the opinion.
MR. CHIEF JUSTICE WHITE delivered the opinion of the Court.
The Carlisle Packing Company, a corporation of the State of
Washington, sued in a court of that state Deming and the two
corporations who, with him, are the plaintiffs in error on this
record. Deming was a citizen and resident of the State of
Washington, and the corporations were
Page 226 U. S. 104
alleged to be citizens of states other than Washington. The
defendants were sued jointly for a violation by them of a contract
alleged to have been jointly made for the purchase of salmon. There
was a joint answer by the defendants, putting at issue the material
allegations of the complaint. There was a jury trial. When the
Carlisle Company rested, motions for nonsuit were separately made
on behalf of each of the defendants and were overruled.
After the defendants had offered their proof and the case was
ripe for submission, the counsel for the two corporate defendants
presented a petition and bond for the removal of the cause to the
proper federal court, and asked that the bond be approved and
further proceedings be stayed. The asserted right to remove
proceeded upon the assumption that Deming had been fraudulently
joined as a defendant for the purpose of preventing the two
nonresident defendants from removing the case. This was supported
by the contention that the proof as offered left no doubt that
Deming had made the contract declared on merely as the agent of the
two corporations, and was therefore not personally bound. In
denying the petition to remove, the trial judge directed attention
to the fact that the motion made at the close of the plaintiff's
proof for a nonsuit in favor of Deming had been denied because the
court was of opinion that there was evidence to go to the jury on
the question of the liability of that defendant, and further
observed that the situation in this respect had not been altered by
the testimony introduced for the defendants. The cause was
submitted to the jury upon instructions which, among other things,
left it open to find against less than all of the defendants if the
jury believed that the contract had not been made with all. There
was a verdict for the plaintiff against all the defendants, and a
judgment entered thereon was affirmed by the supreme court of the
state. 62 Wash. 455. The appellate court, among other things,
decided that no
Page 226 U. S. 105
error had been committed in overruling the motions for nonsuit
and in denying the petition to remove, and in substance held that
the plaintiff had the right to join Deming as a party
defendant.
The prosecution of this writ of error is based upon the
assumption that a federal question was involved in the refusal to
grant the petition for removal. In view, however, of the well
settled and indeed now elementary doctrine that, although a record
may present in form a federal question, a motion to dismiss will be
allowed where it plainly appears that the federal question is of
such an unsubstantial character as to cause it to be devoid of all
merit, and therefore frivolous, we think it is our duty to grant a
motion to dismiss which has been here made. We reach this
conclusion because the case was not a removable one when it was
called for trial. Not being removable before trial, the plaintiff
had the right to have the issues of fact and law raised determined
in the state court which had jurisdiction over the cause. This
power could not be destroyed by the mere act of the defendants, or
one of them, in asking a removal based upon the assumption that, if
the evidence in the case was properly weighed and the legal
principles applicable were correctly applied there would result a
condition from which a right to remove would arise. On its face,
the assertion of such a right involved two propositions, whose
unsubstantial character is made manifest by their mere statement:
(a) that the state court had jurisdiction over the cause, but had
no right to exercise that jurisdiction; (b) that a federal court
could endow itself with jurisdiction over a cause to which its
authority did not extend by disregarding the pleadings and
wrongfully assuming the right to revise the decision of the state
court on matters of an absolutely nonfederal character which that
court had the right to decide. Nor is there force in the suggestion
that the right to remove under the circumstances stated finds
support in the ruling
Page 226 U. S. 106
in
Powers v. Chesapeake & Ohio Ry. Co.,
169 U. S. 92, since
in that case, a separable controversy on the face of the record
arose at the opening of the trial, consequent on the discontinuance
by the plaintiff of his action as against the resident defendant
whose joinder had, up to that time, made the action nonremovable.
The difference between that case and the one here presented is
apparent, and, at the time the petition for removal was presented
and this writ of error was sued out, had been pointed out in
decisions of this Court.
Whitcomb v. Smithson,
175 U. S. 635;
Alabama Southern Ry. v. Thompson, 200 U.
S. 206,
200 U. S. 217;
Illinois Central R. Co. v. Sheegog, 215 U.
S. 308.
Dismissing the writ of error, as we shall therefore do for the
reasons stated, it remains to consider whether we should grant a
prayer for damages for delay which has been made. That the
unsubstantial and frivolous character of the only federal question
relied upon of necessity embraces the conclusion that the writ was
prosecuted for delay is, in our opinion, indubitable. Does the
power to award damages for delay exist where a writ of error is
dismissed because of the unsubstantial and frivolous character of
the asserted federal right and the conclusive inference that the
writ was prosecuted for mere delay, which arises from sustaining
such ground for dismissal? is then the question. That the
comprehensive text of Rule 23, embracing, as it does, "all cases"
where a writ of error shall appear to have been sued out for mere
delay, brings this case within its purview is obvious. But as the
power which the rule expresses depends upon Rev.Stat. § 1010, we
must consider the subject in the light of the statute. The power
conferred is to impose damages for delay in cases "where, upon a
writ of error, judgment is affirmed in the Supreme Court. . .
."
It has been decided that, where there was no power on a motion
to dismiss, to consider whether a case was prosecuted for delay
only, that a prayer for dismissal on such
Page 226 U. S. 107
ground could not be allowed and damages could not be awarded.
Amory v. Amory, 91 U. S. 356. But
the mere statement of the doctrine demonstrates that it rested upon
the obvious proposition that a decree would not be made to embrace
subjects which the court was not empowered to consider in
determining whether the relief asked for should be awarded. This
doctrine has no application here, since, by a line of cases
announced subsequent to the decision in
Amory v. Amory, it
has come to be settled that, on a motion to dismiss, it is the duty
of the court to consider whether an asserted federal question is
devoid of merit and unsubstantial, either because concluded by
previous authority or because of its absolutely frivolous nature,
and if it is found to be of such character, to allow a motion to
dismiss. This being true, as the conclusion that a writ of error
has been prosecuted for delay is the inevitable result of a finding
that it has been prosecuted upon a federal ground which is
unsubstantial and frivolous, it follows that the question of delay
is involved in and requires to be considered in passing upon a
motion to dismiss because of the frivolous character of the federal
question. The decisions of this Court also leave it no longer open
to discussion that, where it is found that a federal question upon
which a writ of error is based is unsubstantial and frivolous, the
duty to affirm results.
We have, then, this situation: the finding that a particular
ground -- that is, the frivolity of the federal question -- exists
indifferently justifies either a judgment of affirmance or an order
of dismissal.
Chanute v. Trader, 132 U.
S. 210;
Richardson v. Louisville & N. R.
Co., 169 U. S. 128;
Blythe v. Hinckley, 180 U. S. 338;
New Orleans Water Works Co. v. Louisiana, 185 U.
S. 336,
185 U. S. 345;
Equitable Life Assurance Society v. Brown, 187 U.
S. 308. The want of substantial difference between the
two, as well as the rule which should determine the practice to be
followed in awarding, in such a case, one or
Page 226 U. S. 108
the other, either affirmance or dismissal, was pointed out in
the
Equitable case. Thus, the court said (187 U.S.
187 U. S.
314):
"From the analysis just made, it results that, although a
federal question was raised below in a formal manner, that
question, when examined with reference to the averments of fact
upon which it was made to depend, is one which has been so
explicitly decided by this Court as to foreclose further argument
on the subject, and hence to cause the federal question relied upon
to be devoid of any substantial foundation or merit. . . . It is
likewise also apparent from the analysis previously made that, even
if the formal raising of a federal question was alone considered on
the motion to dismiss, and therefore the unsubstantial nature of
the federal questions for the purposes of the motion to dismiss
were to be put out of view, the judgment below would have to be
affirmed. This follows since it is plain that, as the
substantiality of the claim of federal right is the matter upon
which the merits depend, and that claim being without any
substantial foundation, the motion to affirm would have to be
granted under the rule announced in
Chanute v. Trader,
Richardson v. Louisville & N. R. Co., and
Blythe v.
Hinckley, supra. This being the case, it is obvious that, on
this record, either the motion to dismiss must be allowed or the
motion to affirm granted, and that the allowance of the one or the
granting of the other as a practical question will have the like
effect, to finally dispose of this controversy. . . . As this is a
case governed by the principles controlling writs of error to state
courts, it follows that the federal question upon which the
jurisdiction depends is also the identical question upon which the
merits depend, and therefore the unsubstantiality of the federal
question for the purpose of the motion to dismiss and its
unsubstantiality for the purpose of the motion to affirm are one
and the same thing -- that is, the two questions are therefore
absolutely coterminous. Hence,
Page 226 U. S. 109
in reason, the denial of one of the motions necessarily involves
the denial of the other, and hence, also, one of the motions cannot
be allowed except upon a ground which also would justify the
allowance of the other."
Stating that in such a case, the determination whether a
judgment of affirmance would be awarded or an order of dismissal be
allowed involved nothing whatever of substance, but mere form of
statement, as the two were the equivalent one of the other, it was
observed that the better practice, where the question was not
inherently federal, was to adopt the form of allowing a motion to
dismiss, the court, on the subject of the inherently federal
question, referring to
Swafford v. Templeton, 185 U.
S. 487,
185 U. S.
493.
The inquiry, then, narrows itself to this: does the power to
award the damages for delay which the statute confers in cases of
affirmance give the authority to exert the power where, in form,
there is no judgment of affirmance, but only an order of dismissal?
To say that the duty to impose the statutory damage in such a case
did not exist would require us to hold that things which were one
and the same must be held to be different, and that the statute did
not extend to and include that which in substance it embraced,
because, by adhering blindly to mere form of words, the statute
might be treated as not extending to an authority embraced within
its spirit and purpose. No more cogent demonstration of the truth
of this view could be given than by pointing out that, if the
proposition were not true, it would follow that in no case could
this Court, without operating injustice, grant a motion to dismiss
because of the frivolous and unsubstantial nature of the alleged
federal ground. This would be the case, since, if greater right
would be conferred by affirming on such ground, the duty would
arise to follow that practice instead of the practice of
dismissing. Indeed, the subject is further aptly illustrated by
directing attention to the fact that it is not questioned that the
power here obtains
Page 226 U. S. 110
to direct the imposition of the penalty if the result of our
conclusion that the federal ground was frivolous be followed by an
affirmance instead of an order of dismissal. Because of the
absolute coincidence between a dismissal on account of the
frivolous and unsubstantial character of the federal question
relied upon and an affirmance upon the same ground, we are of
opinion that the statutory authority to impose the penalty obtains
in either case. In stating the reasoning which has led us to this
conclusion, we have not been unmindful of, although we have not
reviewed, a line of cases concerning the nature and extent of the
power to impose costs in the case of a dismissal for want of
jurisdiction.
See Citizens' Bank v. Cannon, 164 U.
S. 319,
164 U. S. 323,
and cases cited. We have not deemed it necessary to do so because
nothing in the reasoning of those cases tends to affect the
substantial identity which exists between a decree of dismissal and
one of affirmance where the ground upon which one is placed equally
justifies either form of decree.
In consequence of the conclusion which we have reached as above
stated, we direct the imposition of a penalty, in addition to
interest, of five percent on the amount of the judgment recovered
below and the taxation of costs as upon an affirmance.
Writ of error dismissed with damages, etc.