1. Sections 71 and 80, Title 28 U.S.C. were designed to prevent
delay over orders remanding causes. They entrust determination to
the informed judicial discretion of the District Court, and cut off
review. P. 204.
2. A state Supreme Court, basing its determination exclusively
on the allegations of a petition to remove, and concluding
therefrom that the cause involved a separable controversy between
citizens of different States, directed removal. The federal
District Court, basing its determination on the entire record,
including new facts, found that there was no separable controversy
and that the plaintiff was an alien, and remanded the cause.
Held:
(1) The District Court acted within its jurisdiction, pursuant
to §§ 71 and 80, Title 28, U.S.C. P.
311 U. S.
204.
(2) The order of remand was not reviewable by the Circuit Court
of Appeals. P.
311 U. S. 205.
109 F.2d 72 reversed.
Certiorari, 310 U.S. 621, to review orders of the court below,
in mandamus proceedings, which directed the District Court to set
aside remands in five separate actions.
Page 311 U. S. 200
MR. JUSTICE McREYNOLDS delivered the opinion of the Court.
Respondents, Armour & Company, a Kentucky corporation, by
petition obtained from the Circuit Court of Appeals, Sixth Circuit,
Armour & Co. v. Kloeb, 109 F.2d 72, 74, an order
directing the U.S. District Judge, Northern District of Ohio, to
set aside the remands of five separate actions. The opinion of the
Court made the following statement concerning the basic issue:
"A number of persons, including George E. Kniess, brought suit
against Armour and Company in the Court of Common Pleas of Lucas
County for damages claimed to have been suffered in the consumption
of food products, materials for which were prepared by Armour and
Company, but which were processed by a retailer in Toledo by the
name of Burmeister. In each of the five cases, and upon identical
petitions, the plaintiffs joined Burmeister as a defendant on the
theory that he and the Armour Company were joint tortfeasors.
Armour and Company filed its petitions for removal with the Court
of Common Pleas accompanied by proper removal bonds. Its petitions
were contested by the plaintiffs, and were denied. The Kniess case
proceeded to trial while the other cases were held in abeyance, and
it eventually reached the Supreme Court of Ohio,
Kniess v.
Armour & Co., 134 Ohio St. 432, 17 N.E.2d 734. That court
disposed of the case upon the sole ground that the removal petition
should have been allowed because a separable controversy existed as
between plaintiff
Page 311 U. S. 201
and Armour. It stated the law of Ohio to be that, where the
responsibility of two tortfeasors differs in degree and in nature,
liability cannot be joint, and the alleged torts are not
concurrent. Holding that the defendant Armour and Company had
adequately preserved its exceptions to the ruling of the lower
court, the cause was reversed and remanded to the Court of Common
Pleas with instructions to grant the removal petition, and the
mandate directed the Court of Common Pleas to remove the cause to
the District Court of the United States."
"When the case came before the respondent, the plaintiff moved
to remand and, notwithstanding the adjudication by the Ohio Supreme
Court, which had become final, the respondent proceeded to take
evidence upon the question of a separable controversy, decided
there was none, that the cause was not removable under the statute,
entered an order to remand the case to the Court of Common Pleas of
Lucas County, and denied petitions for rehearing."
The District Judge rendered no opinion to support his actions,
but, responding to the rule from the Circuit Court of Appeals to
show cause, he cited
McNutt v. General Motors Acceptance
Corp., 298 U. S. 178,
referred to affidavits filed in support of the motions, and said
that, upon consideration of the entire record, he became satisfied
that none of the five suits
"really and substantially involved a dispute or separable
controversy wholly between citizens of different states which could
be fully determined as between them, and therefore none of said
causes were within the jurisdiction of the District Court of the
United States, and, further, that plaintiff Kniess is an
alien."
Title 28, U.S.Code, provides --
"Section 71 -- Whenever any cause shall be removed from any
State court into any district court of the United
Page 311 U. S. 202
States, and the district court shall decide that the cause was
improperly removed and order the same to be remanded to the State
court from whence it came, such remand shall be immediately carried
into execution, and no appeal or writ of error from the decision of
the district court so remanding such cause shall be allowed."
"
* * * *"
"Section 80 -- If, in any suit commenced in a district court, or
removed from a State court to a district court of the United
States, it shall appear to the satisfaction of the said district
court at any time after such suit has been brought or removed
thereto, that such suit does not really and substantially involve a
dispute or controversy properly within the jurisdiction of said
district court, or that the parties to said suit have been
improperly or collusively made or joined, either as plaintiffs or
defendants, for the purpose of creating a case cognizable or
removable under this chapter, the said district court shall proceed
no further therein, but shall dismiss the suit or remand it to the
court from which it was removed, as justice may require, and shall
make such order as to costs as shall be just."
Employers Reinsurance Corp. v. Bryant, 299 U.
S. 374,
299 U. S.
380-381, says of these sections:
"They are
in pari materia, are to be construed
accordingly, rather than as distinct enactments, and, when so
construed, show, as was held in
Morey v. Lockhart,
123 U. S.
56,
123 U. S. 58, that they are
intended to reach and include all cases removed from a state court
into a federal court and remanded by the latter."
The Court below concluded:
"The District Court had no power to determine the issue of
separable controversy entitling the petitioner to remove, because
that issue had already been adjudicated by the Supreme Court of
Ohio, and the District Court, upon familiar principles, was bound
by such adjudication. "
Page 311 U. S. 203
And it said,
"It would seem that in the use in Section 71 of the words 'the
district court shall decide,' and in the employment in Section 80
of the phrase 'it shall appear to the satisfaction of the said
district court,' it was within the contemplation of the Congress
that the statute should apply to those cases in which there was
some issue which, as a matter of primary decision, was submitted to
the District Judge. It certainly could not have been intended to
apply to decision of a question which was not properly at issue
before the District Judge, since it had already been adjudicated by
the Supreme Court of Ohio in the same proceeding, between the same
parties, and upon the plaintiff's petition. To hold otherwise would
be to permit the District Court to defy the statute, which
provides:"
"The records and judicial proceedings of the courts of any State
. . . shall have such faith and credit given to them in every court
within the United States as they have by law or usage in the courts
of the State from which they are taken."
Also,
"The decisions in
Employers Reinsurance Corp. v. Bryant,
District Judge, supra, and in
In Re Pennsylvania Company,
supra, must not, in our judgment, be extended beyond the
situations requiring the application of the rule there announced --
that is to say, to cases where the issue of the petition to remand
called for original and primary decision by the District Court
unfettered by the doctrine of
res judicata or the mandate
of the 'full faith and credit' statute. . . ."
"That the decision of the Ohio Court was
res judicata
notwithstanding the issue was one involving the jurisdiction of a
federal Court, is settled by
American Surety Co. v.
Baldwin, 287 U. S. 156;
Baldwin v.
Iowa State Traveling Men's Assn., 283 U. S.
522, and the decision in
Evelyn Treinies,
Petitioner v. Sunshine
Page 311 U. S. 204
Mining Co. et al. [
308 U.S.
66], announced as recently as November 6, 1939."
"While the precise question here involved is one of first
impression, the Supreme Court in
In Re Metropolitan Trust
Co., 218 U. S. 312, has drawn the
distinctions between orders to remand erroneously issued and those
issued by a District Judge in excess of his authority. The former
may not be challenged by appeal or writ of mandamus -- the latter
are a nullity. We think it follows that, under general supervisory
powers, they may be set aside."
We cannot accept the conclusion of the Circuit Court of Appeals.
It derives from an inadequate appraisal of the record and of
sections 71 and 80 U.S.Code,
supra.
These sections were designed to limit possible review of orders
remanding causes, and thus prevent delay.
In re Pennsylvania
Co., 137 U. S. 451,
137 U. S. 454.
They entrust determination concerning such matter to the informed
judicial discretion of the district court, and cut off review.
In this cause, the district judge weighed the petitions and
relevant affidavits and concluded that the controversy was not
within the jurisdiction of that court. His clear duty was to
proceed no further, and to dismiss or remand the causes. The
statute exempted his action from review.
The suggestion that the federal district court had no power to
consider the entire record and pass upon the question of
separability, because this point had been finally settled by the
Supreme Court of Ohio, finds no adequate support in the cases cited
by the opinion below:
Baldwin v. Iowa State Traveling Men's
Assn., 283 U. S. 522,
American Surety Co. v. Baldwin, 287 U.
S. 156, and
Treinies v. Sunshine Mining Co.,
308 U. S. 66. None
of these causes involved a situation comparable to the one here
presented.
Page 311 U. S. 205
Section 72, Title 28, U.S.Code, provides the requisites for
removing causes from state to federal courts and directs that, when
complied with, the state court shall proceed no further. The
Supreme Court of Ohio declared: "In passing upon the question of
removal, unfortunately, we are limited solely to a consideration of
the facts stated in the petition." It held that, upon them, the
trial court should have relinquished jurisdiction.
The causes went to the federal district court, and additional
facts were there presented. As required by the statute, that court
considered all the relevant facts, petitions, and affidavits,
exercised its discretion, and ordered the remands. Jurisdiction to
decide, we think, is clear; the Circuit Court of Appeals lacked
power to review the remand.
The challenged order must be
Reversed.