WABASH WESTERN RY. V. BROW, 164 U. S. 271 (1896)

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U.S. Supreme Court

Wabash Western Ry. v. Brow, 164 U.S. 271 (1896)

Wabash Western Railway v. Brow

No. 235

Submitted November 6, 1896

Decided November 30, 1896

164 U.S. 271


The filing by the defendant in an action in a state court of a petition for its removal to the proper Circuit Court of the United States does not prevent the defendant, after the case is removed, from moving in the federal court to dismiss it for want of jurisdiction of the person of the defendant in the state court or in the federal court.

Joseph Brow commenced suit in the Circuit Court of Wayne County, Mich. against the Wabash Western Railway to recover the sum of twenty thousand dollars for personal injuries (caused, as he alleged, by defendant's negligence) by the service, September 24, 1892, of a declaration and notice to appear and plead within twenty days, on Fred J. Hill, as agent of the company, which declaration and notice were subsequently filed in that court. On the 7th of October, defendant filed its petition and bond for removal in that court, and an order accepting said bond, and removing the cause to the Circuit Court of the United States for the Eastern District of Michigan and directing the transmission of a transcript of record was entered.

The petition alleged that the matter and amount in dispute exceeded, exclusive of interest and costs, the sum or value of two thousand dollars, and that the controversy was between citizens of different states; that petitioner was at the time of the commencement of the suit, and still was,

"a corporation created and existing under the laws of the State of Missouri, having its principal business office at the City of St. Louis in said state, and a citizen of the said State of Missouri and a resident of said state and that the plaintiff, Joseph Brow, was then, and still is, a citizen of the State of Michigan, and a resident of the County of Wayne, in said state."

The record having been filed in the Circuit Court of the

Page 164 U. S. 272

United States for the Eastern District of Michigan, a motion to set aside the declaration and rule to plead was made in the cause in these words and figures:

"And now comes the Wabash Western Railway, defendant (appearing specially for the purpose of this motion), and moves the court, upon the files and records of the court in this cause and upon the affidavit of Fred J. Hill, filed and served with this motion, to set aside the service of the declaration and rule to plead in this cause and to dismiss the same for want of jurisdiction of the person of the defendant in the state court from which this cause was removed, and in this Court."

The affidavit was to the effect that Hill, on September 24, 1892, was the freight agent of

"the Wabash Railroad Company, a corporation which owns and operates a railroad from Detroit to the Michigan state line, and was not an agent of the Wabash Western Railway, defendant in this suit,"

and that, on the day aforesaid, the Wabash Western Railway

"did not own, operate, or control any railroad in the State of Michigan or have any officers or agent of any description therein, and did no business and had no property and no place of business in said state, and that on said day deponent was not a ticket or station agent of the said defendant nor an officer or agent of the defendant of any description."

The motion was denied by the circuit court, with leave to defendant to plead within ten days, and defendant excepted. Thereafterwards defendant filed a plea in said cause as follows:

"And the said defendant, appearing and pleading under protest, and excepting to the refusal of the court to grant its motion to dismiss, by Alfred Russell, its attorney, comes and demands a trial of the matters set forth in the declaration of the said plaintiff."

The cause was subsequently tried, and resulted in a judgment in favor of Brow for $2,500 and costs. The bill of exceptions sets forth that then the case came on for trial, the defendant company protested in open court against being forced to go to trial, and for cause of protest showed to the court that the defendant was a corporation organized in the State of Missouri and that, at the time of the commencement

Page 164 U. S. 273

of this suit, the defendant had no agent, business, property, officer, or servant in the State of Michigan, and had not been served, and had not appeared.

The court overruled the protest, and defendant duly excepted. An instruction embracing the same point was also asked by defendant and refused, and an exception taken.

A writ of error was allowed from the Circuit Court of Appeals for the Sixth Circuit, and the cause heard by that court. Among the errors assigned were the refusal of the circuit court to grant the motion to set aside the service of declaration and rule to plead, and to dismiss the cause; the compelling of defendant to go to trial against its protest, the court having no jurisdiction over its person, and the refusal of the instruction presenting the same point. The opinion is reported in 65 F.9d 1, and fully discusses the objection to the jurisdiction of the state court over defendant's person, ruling that the filing of a petition for removal to the circuit court effected a general appearance, and that it was too late, after such removal had been perfected, for it, in the circuit court, to attempt to plead that that court had no personal jurisdiction over the company by virtue of the process issued. The case was also considered upon the merits, and the judgment was affirmed. Thereupon application was made by plaintiff in error to this Court to issue a writ of certiorari to the circuit court of appeals, which was granted, and, the record having been sent up, the cause was submitted on briefs.

Page 164 U. S. 275

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