Anderson v. United Realty Co.
1911 U.S. LEXIS 1767 · 222 U.S. 164 · 32 S. Ct. 50 · 56 L. Ed. 144
December 4, 1911 · Docket 27
Headnotes
Generated summaries- Headnote 1
In Anderson, the plaintiff filed a removal petition and bond, but the state court later entered an order dismissing the removing defendant and stating that the removal petition was withdrawn. The court then proceeded against the remaining defendants. The opinion holds that the earlier filing of the removal petition did not strip the state court of authority over those remaining parties.
- Headnote 2
The Ohio trial court entered an order dismissing the defendant who had removed the case and reciting that the removal petition was withdrawn. After that order the suit continued against the other defendants. The Supreme Court concluded that the state court’s jurisdiction was restored automatically by that order.
- Headnote 3
The plaintiff waited until the appellate stage to object to the state court’s jurisdiction, after a full jury trial had been completed. The Court held that the failure to object at the earliest possible stage constituted a waiver, making the trial and judgment valid.
- Headnote 4
The opinion explains that a trial after the removal petition is withdrawn would be coram non judice unless the state court’s jurisdiction was restored. Because the plaintiff did not timely object, the court’s jurisdiction was deemed restored and the trial and verdict were valid.
- Headnote 5
The Court noted that a trial after a removal petition would be coram non iudice only if jurisdiction were not restored, and held that the plaintiff could not now claim the state court lacked authority, indicating that jurisdiction remains after the petition.
- Headnote 6
The plaintiff waited until appeal to object; the Court said the plaintiff was not in a position to assert lack of authority, treating the earlier participation as a waiver of the jurisdictional challenge.
- Headnote 7
The order dismissing the action against the removing defendant explicitly withdrew the removal petition, and the Court said the state court recovered jurisdiction by that action.
- Headnote 8
The opinion expressly states the state court had jurisdiction over the subject matter and recovered jurisdiction over the remaining parties.
- Headnote 9
The case proceeded against remaining defendants with no objection, and the Court treated the lack of timely objection as a waiver.
- Headnote 10
The Court quoted that once a state court adjudged authority, the party could regard that decision as final and need not protest later stages of the trial.
- Headnote 11
The Court considered whether the state court could continue the action after a removal petition was filed and held that the filing alone does not strip the court of authority.
- Headnote 12
An order dismissing the plaintiff’s claim against the removing defendant and stating that the removal petition was withdrawn was entered; the Court said the state court recovered jurisdiction over the remaining parties by that action.
- Headnote 13
The plaintiff proceeded without objection and only raised the issue on appeal; the Court held that such failure to object at the earliest opportunity constitutes a waiver of the jurisdictional claim.
- Headnote 14
Because the plaintiff’s objection was waived, the Court affirmed the jury trial and judgment, holding that the plaintiff could not claim the trial lacked authority.
- Headnote 15
Assuming a separable controversy and the requisite diversity, the Court said the state court’s duty would be to accept the petition and not proceed further in the case.
Opinion
Memorandum opinion by direction of the court.
The single question for our consideration upon this writ of error concerns the jurisdiction of the state court to proceed with the action' after one of the original defendants had-filed its petition and.bond for removal to, the Circuit Court of the United States.
If, as we shall assume, there was a separable controversy and the requisite diversity of citizenship, it was the duty of the state court 4o accept the petition and bond and proceed no further in the case. A trial and judgment thereafter would be coram non judice, unless its jurisdiction over the cause and the parties was in some way restored. National Steamship Co. v. Tugman, 106 U. S. 118; Trac tibn Company v. Mining Company, 196 U. S. 239, 253. But we are of opinion that the plaintiff in error is not in a position to now assert that the state court’s subsequent exercise of jurisdiction was without, authority. When the removal petition and bond were filed, the plaintiff, before any order was made in the state court or the record filed - in the United States court, had an order entered in the state court dismissing his action against the removing defendant and certain others having like ground of removal, the order reciting that in consideration of such dismissal the petition for removal'was withdrawn. Thereafter the cause was proceeded with against the remaining defendants without the hint of any objection by either the plaintiff or the remaining defendants. Upon the contrary, many steps were taken and a long jury trial had, resulting in a verdict, and judgment for the defendants. Not until the cause was carried to the Ohio Circuit Court by appeal of the plaintiff was there any objection made to the jurisdiction of the trial court.
The state court had jurisdiction over the subject-matter. It recovered jurisdiction over the remaining parties by action and conduct equivalent to. a formal waiver of new process and new pleadings or any formal remander by the United States court.
The Tugman Case,, cited above, does not help the plaintiff in error. The defendant whose right to remoye had been erroneously Jdenied was held not to have waived his right to remove by subsequently consenting to a reference of the case to a referee, or by defending the suit both before the referee and the court without protesting. This court said (p. 123):
“When the State court adjudged that it had authority to proceed, the company was entitled to regard the decision as final, so far as that tribunal was concerned, and . was not bound, in order, to maintain the right of removal, to protest at subsequent stages of the trial against its ex ercise of jurisdiction. Indeed, such a course would scarcely ■have been respectful to the State court, after its ruling upon the-point of jurisdiction had been made.”
Ifv on the other hand, he had thereafter invoked the court’s jurisdiction in his own behalf, he would not have been permitted later to deny it. Texas & Pac. Ry. v. Eastin, 214 U. S. 153; Garrozi v. Dastas, 204 U. S. 64, 73; C. & O. Ry. v. McDonald, 214 U. S. 191.
Judgment affirmed.