Mciver v. Florida Central & Peninsular Railroad

Little, J.

I can not concur in the ruling made in this case by a majority of the court. In my opinion, when a suit is commenced in a State court and removed to the Federal court under the law of Congress) not only the actual case pending, but the cause of action upon which it is founded, is also removed, and, after dismissal or nonsuit in the Federal court, another suit on ,the same cause of action can not be entertained by the State court, although in the second action the damages are laid in an amount less than the limit fixed by the act of Congress to entitle a defendant to removal when there is diverse citizenship. As was said by Mr. Justice McLean in the case of Gordon v. Longest, 41 U. S. 97, “ One great object in the establishment of the courts of the United States, and regulating their jurisdiction, was to have a tribunal in each State, presumed to be free from local influence ” ; and it was doubtless the purpose of Congress in providing for the removal, by a non-resident defendant, of a caso brought against him in a State court, to protect such non-resident in the trial of his case from the local influence which might exist in favor of the resident plaintiff in the State court. This purpose would be entirely defeated if, after a plaintiff has instituted an action to recover damages for an injury which she claims to have sustained by reason of the wrongful act of the non-resident defendant, as in this case, and has named a particular amount as the proper measure of her damage, and, exercising the right conferred by the Congress, the defendant by lawful proceedings stays the jurisdiction of the State court and brings the action before the Federal court for determination, and when that case *232lias been dismissed in the Federal court, the plaintiff may again bring and maintain her action against the same defendant .for the same causes for which ghe first complained in the State court, by arbitrarily fixing her damages in the second suit at a less amount, so as to place the last case brought out of the jurisdiction of the Federal court. The amount involved in the controversy is, under the act of Congress, an incident. Congress had for its object in providing for the removal of causes the better protection of aliens and non-residents. The State court would be no less competent to deal with a cause involving twenty-one hundred dollars, than it would be to deal with a cause involving nineteen hundred dollars. While the right of removal exists only in a case where the sum involved is not less than that named in the statute, yet the consideration which moved the minds of the lawmakers to authorize the removal rested in the purpose to provide a trial free from local influence which it was thought might be prejudicial to the defendant’s cause, and not on the particular amount involved, except in so far as the importance of the case to the defendant was concerned. In other words, the prerequisite to. removal that a case should involve trot less than two thousand dollars was required, because of the intention to limit such removal to cases which were deemed particularly .important on account of the amount involved. As to those cases not deemed particularly important, the right of removal on account of diverse citizenship was not granted. Hence, in our opinion, the amount involved in a suit is to be considered only with reference to the question whether it may be removed. If it has once' been removed, that cause, that controversy, stays removed. When it is taken out of the jurisdiction of the State court, that same cause between the parties can not be assumed by it — not because of the amount involved, but because, being a case which was authorized by law to be removed as originally brought, the removal,has the effect of vesting jurisdiction of that cause, in all its phases, in the Federal court, which can alone finally adjudicate the controversy existing between the parties on the issues made by the pleadings.

In Kern v. Huidekoper, 103 U. S. 185, it was said: “ The *233suit and the subject-matter of the suit are both transferred to the Federal court by the same act of removal,” etc. In my opinion, the right of a plaintiff, after the removal of a case has been legally effected, to renew the action in the State court after a dismissal in the Federal court, is not an open question in this State. It was ruled by this court in the case of Cox v. E. T., V. & G. R. R. Co., 68 Ga. 446, that when a case has been removed from a State court to thé circuit court of the United States, the jurisdiction of the former ceases, and after nonsuit in the Federal court, the case can not be renewed in the State court within six months, so as to avoid the statute of limitations. By a provision of our State law, a case which has been dismissed may within six months be renewed, and the statute of limitations can only be made to apply to time and the date at which the first suit was begun, in determining the question whether the last suit is barred by the lapse of time. The plaintiff in the Cox case, supra, sought to make this rule apply to the renewal of his case in the State court from which it had been originally removed to the Federal court, and he was there nonsuited. In delivering the opinion of the court, Chief Justice Jackson said that “the act of removal ipso facto transfers the jurisdiction of the cause to the circuit court of the United States, and divests that of the State court. . . Therefore, when it appeared that the plaintiff himself proved, in order to take his case without the statute of limitations, that it had been removed and adjudicated by the United States court, he removed himself out of court, and was properly nonsuited.” It is said in the opinion of the majority that the exact question under discussion was not involved, and that the language used by the Chief Justice was obiter dicta. On the contrary, I conceive the case affords a direct ruling on the question involved. The point in question has also been expressly decided by the Supreme Court of Ohio in the case of Baltimore & Ohio R. R. Co. v. Fulton, reported in the 53 N. E. Rep. 265. That court ruled the question in the following’ language: “ Where a case that may be is duly removed from a State to a Federal court, the jurisdiction of the State court over the cause at once ceases, and it can take no further step therein; and if thereafter the caséis disposed of in the Federal court *234otherwise than on the merits, the plaintiff can not recommence the action in the State court, although under like circumstances he might have done so had the cause not been removed.” The reasoning of the court seems to me not only to be sound, but conclusive. It is based on the proposition that the Federal court, haying acquired jurisdiction of the action by its removal from the State court, must, on principle and the reason of the statute, retain it for all purposes — -for the purpose of determining whether it ‘should be reinstated, or recommenced after it had been dismissed, or stricken from its docket, as well as for its determination on the merits. It was also stated, in the opinion rendered in the case, that the jurisdiction of the Federal court “ in such cases does not merely embrace the suit brought and removed, but any suit thereafter brought on the identical cause of action after a former suit has been dismissed by it until the cause-of action has been extinguished by a judgment on the merits.” The Chief Justice agrees with the views above expressed, and we both think that the judgment of the court below should have-been affirmed.