Respondents Brief — Kloeb v. Armour & Co.

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IN THE

iceme Court of the United States

October Term, 1940

No. 65

Frank L. Kxiogs, Junez or rHe District

Court or THz Unirep Srares For THE

Nortuern Disraicr or Onto, WeEsTERN

Drviési0n,

Petitioner and Respondent Below,

vs.

Armour & Company, an Iuuinors Corporation,

Respondent and Petitioner Below.

BRIEF OF RESPONDENT

Epwarp W. Kersey, Jp.,

Frep A. Suits,

807 Ohio Bldg., Toledo, Ohio, ©

Cuapizs J. J, ion JB,

i P.

ate, Chicago, Illinois,

Counsel tie Nessendouk

Wetizs, Kutsey, Cosouvrn & nee

807 Ohio Bldg., Toledo, Ohio,

Of Counsel.

Pzroy R. Taytor,

740 An sang Bldg., Toledo, Ohio,

OLAN

828 Nicholas Bldg., Toledo, Ohio, .

Counsel for "etitioner.

~

TOPICAL INDEX

Page

Ri SN. occ kp a Clete ds sacabesoceies 1

A ES SESS Aon ery pane he Pe eee ee 2

‘ IIL. Supplement to Statement of Case Appearing in

¥ CM 3. osc s cea eedisevesewadseeee 2

RVC mEEY GF DPCM. .5. occ ccc cecicccecses 4

iy ME SUN RAN sa 6 0c bos h twcw's pe as buen eels 5

1 and 2. Separable controversy is determined by

the laws of the state where the action is main-

tained and the determination of that fact by

the State Supreme Court fixes the status of

the parties and the law requires the United

States District Court to give full faith and

GOCE BO CURE FIIIIONE ooo. oo ccc scccesecse 5

| 3. The decision of the Supreme Court of. Ohio

, was reviewable by this court on certiorari.

(Judicial Code, Section 237, Amended; 28 U.

Sn es I ek rcke cebu) be dewoo cess beue 16

4, Petitioner’s order of remand in the George E.

Kniess case denied respondent the right. to

amend the petition for removal as requested in

respondent’s motion therefor, pursuant to

Judicial Code Section 274c. (March 3, 1915,

e. 90, 38 Stat. 956; 28 U. S. C. A. 399)........ 17

5. The orders of remand entered by petitioner

are not reviewable by appeal or error, and

being in excess of petitioner’s jurisdiction, a

writ of mandamus is the proper method of cor-

SOOM TD. GEOOE Sieh oo bbc os vec che ed''se S.

VI. RE OD ae Oe Se GREE wha eee ge are! Bae Ee 28

INDEX OF CASES AND AUTHORITIES

; Page

American Surety Co. vs. Baldwin, 287 U.S. 156...7, 8, 17

Armstrong vs. Walters, 219 Fed. 320..............+ 14

me. a vs. Western Union Telegraph Co., 282 Fed.

7

Oe og de wean een eee 15, 16

Chi & Alton Ry. Co. vs. MeWhirt, 243 U. S. 422,

61 L. Ed. 826, 37 S. Ct. 392. ...... cece eee ees

Chicago, Rock Island & Pacific ws vs. Dowell, 229 U.

S. 102, 57 L. Ed. 1090, 33 S. Ct. 684............-.

Cincinnati, N. O. & T. P. Rd. Co. vs. Bohon, 200 U. S.

221, 50 L. Ed. 448, 26S. Ct. 166.........----+-- 5, 16

Clarke vs. Mathewson, 12 Pet. 164.............-+++- 14

Dunn vs. Clarke, 8 Pet 1.........--seeeeeeeeeeeess 14

Employers Corp. vs. Bryant, 299 U. 8. 374......... 15, 22

Hammer et al. vs. British Type Investors, Inc.,-15

Fed. Supp. 497......--.-sseeeeeeeeeeeee reece 19

Hardenberg vs. Ray, 151 U. 8. 112........... eal 14

Interstate B. & L. Ass’n, vs. Edgefield Hotel Co., 109

We OO n. ks.ack.n.a knee tantpnes tAnaesne nt eerEes 14

Kanouse vs. Martin, 15 How. 198...........+-.++++- 14

ay pry American Soda Fountain Co., 194 U.S. 141, ‘i

Kniess vs. Armour & Company, __

SOA Oh Te, GOR. caw cias cee cenpnstcomens 3, 4, 17, 19, 20

Losito vs. Kruse, Jr., 186 O. S. 183. .........--+20:: 20

Lucania, etc., vs. U. 8. Corporation, 15 Fed. (2d) 568. 19

McGowan vs. Risliel, 125 O. S. 77, 80.......... ap ahead 21

Metropolitan Trust Oo., In re, 218 U. S. 312......-. 23, 26

Miller vs. Soule, 221 Fed. 493..........-.2-s+sse08: 6

Missouri K. & T. R. Co. vs. Chappell, 206 Fed. 688... 6

Missouri, Kansas & Tex. Ry. Co. vs. Missouri Rd. &

Warehouse Commissioners, 183 U. S. 53........ 16

Mollan vs. Torrance, 9 Wheat. 537.........++seeeees 14

SpE EST SPEER RRR RIPTSA AEE SME AEA I ANE ALN AP FWY ANI RSIEI

-

7

Page

ee In BS - gis & ee ee ededenneanies 26

Morgan’s Heirs vs. Mo 2 Wheat. 290, 297....... 14

Mullins Lumber Co. vs. Williamson.& Brown Land Co. ¥

OE a NN oo sao on ced 890 5 1a Noe Cote seeesesi 14

Norwalk, Admx. vs. Air-Way Electric Appliance

Corp., 87 F. (2) 31%, 110 A. L. BR. 183..........

Pheing we, Qala, S27 Ui, He GOO 5 v'nk cccectsscceces 14

Powers vs. C. & O. R. Co., 65 Fed. 129, affirmed

ROOT, Fi BR Baa Be Ge ovine ccvncckevenssecas 6

Pullman Co. vs. Jenkins, 305 U. S. 534, 537........ 14

Rogge vs. Michael Del Balso, Inc., 15 Fed. Supp. 499 19

Rooker vs. Fidelity Trust Co., 263 U. S. 413...... 7

St. Paul Indemnity Co. vs. Cab Co., 303 U. S. 283.. 14

Stewart, et al., vs. Nebraska Tire & Rubber Co., 39

My SE: Gs oe wal no ded Faces evan ence earibee 19

Stoll vs. Gottleib; 306 U. 8. 165..........2cccccceas 10

Tillman vs. Busso Asiatic Bank, 51 Fed. gf 1023... 19

Treinies vs. Sunshine Mining Co., 308 U. S. 66...... 7,9

Waco vs. U. 8S. F. & G. Co., ons U, 8. 100. :........ 24

Webster vs. Fall, 266 U. S. "507 i es Cau tea eeted tant 12

Wichita R. & Light Co. vs. Public Utilities Comm’n,

Sea We ME: ed 0.05 oackde ns cane sb akioes 4 Samens 14

Wiley vs. Judge of Allegan Court, 29 Mich. 488.... 25

Windholz vs. Everitt, 74 Fed. (2d) 834 .......... 24, 26

oung vs. Southern Pacific Co., 15 Fed. (2d) 280:... 19

udicial Code, Section 28 ...............eeee- 15, 17, 19

Judicial Code, Section 37 .........ccccescceee 13, 15, 19

Judicial Code, Section 274c. ............... oy 4, 18, 19

Ohio General Code, Section 11312 ................. 21

ae As Gir cs PIE TEs hn Seed ccdecsscbaecssssce 17

28 U. S. C. A, Section 344, Judicial Code Sec. 237,

MOE c gS Gis anh dee bn hndn ee bn beuondaee 16

Se a, Ss ce, EE EE in vee dyed wescwecesees 3, 4, 18

28 U.S. C. A., Section 687, R. S. 905.............. .

| IN THE vot

Supreme Court of the United States

. October Term, 1940

No. 65

Frawx L. Kiozs, Jupen or tHe District

Court or THE Unirep StaTEs FOR THE

Norruern Distaict or Onto, WESTBEN

Division,

Petitioner and Respondent Below,

v8.

Armour & Company, aN InLivors ConporaTion,

Respondent and Petitioner Below.

et, BRIEF OF RESPONDENT

I

OPINIONS BELOW

The first opinion in the Cireuit Court of Appeals for

the Sixth Circuit was filed on December 5, 1939, and ap-

pears in the record, page 66, et seq. It is reported in

109 Fed. (2d) 72. |

Naan $e BOR ERPS as SGA tanita Shea FORT PS Chae Sw eh ee eee

The second opinion of said court has not been re-

ported, but was rendered on March 12, 1940, and is found

at page 71 of the record. .

II

JURISDICTION :

Respondent concedes this court has jurisdiction to

review the judgment below.

The date of the judgment to be reviewed is March

12, 1940. (Record, page 71.) The petition for writ of

certiorari was filed May 6, 1940, and was granted June

3, 1940. °

Til *

SUPPLEMENT TO STATEMENT OF CASE APPEAR-

ING IN PETITIONER’S BRIEF “

The petitioner’s statement of the case is substan-

tially correct. There are, however, certain omissions of

pertinent facts to which attention should be called.

After the five cases in question had been removed

from the state court and docketed in the federal court,

separate answers were filed by Armour and Company in

each case, and thereafter an identical stipulation was

filed in each case permitting the plaintiff to file an

amended complaint without prejudice to the rights of the

defendants to move to strike any new matter, said stipu-

lation further providing that the defendants’ answers

should stand as answers to the amended complaint.

Thereafter the plaintiff in each case filed an amended

complaint and the defendant, Charles J. Burmeister, filed

a separate answer in each case. All these proceedings

e

4 3

were prior to the time any motion to 12mand was filed.

(R. 6. paragraphs numbers 12 to 16, inclusiv=)

Shortly after the motion to remand in th: George E.

Kniess case was filed, together with an affide’rit claiming

that he was an alien, Armour and Company filed a mo-

tion pursuant to Judicial Code Section 274c (28 U. S.

C. A., Section 399) to amend its petition for removal to_

correctly state the facts in the event it was ascertained

’ thateGeorge E. Kniess was an alien. Before any investi-

gation could be made on that question, the District Court,

without making any ruling on the question of whether

George E. Kniess was an alien or any ruling on the mo-

tion tc amend in the event that was found to be the fact,

entered an order remanding all five cases. (R. 6 and 7,

paragraphs numbers 17 and 18.)

The petitioner’s statement of the facts is incorrect

in regard to the decision of the Supreme Court of Ohio

in Kniess vs. Armour and Company, 134 O. S. 432. In

petitioner’s brief (page 6) appears the statement that

the Supreme Court of Ohio reversed the lower courts

‘solely on the ground that the cause should be removed

to the federal court because a separable controversy ex-

isted.’’? In fact, the judgment against defendant Bur-

meistef was reversed because he was not jointly liable

under the law of Ohio, the Supreme Court of Ohio stating

in its opinion:

«<* * *® Burmeister filed a demurrer on the

ground of misjoinder, asserting that there was 4

want of joint liability. Therefore, the judgment,

which was a joint one, cannot stand as to either

defendant. See Stark County Agricultural Society

= eam supra, at page 575. ° * *” (Page

4

tv

SUMMARY OF ARGUMENT

1. Where the State Supreme Court has determined

in a tort action that the liability of one defendant is pri-

mary and the liability of another defendant secondary,

so that a joint judgment cannot be maintained and where

after considering the petition for removal of the non-

resident defendant, directs the lower court to grant the

petition of the non-resiflent defendant, that determina-

tion of fact and law is conclusive upon the parties and

cannot be reviewed by the, United States District Court

on a motion to remand.

2. The power of the petitioner to pass upon the

..estion of whether the respondent and the resident de-

fendant were properly joined in the suits brought by

Kniess et al., was barred by the proceedings taken in the

state courts, which ripened into a final judgment consti-

tuting res judicata to which petitioner was required to

give full faith and credit (R. 8S. 905, 28 U. 8. C. A. 687).

3. The decision of the Supreme Court of Ohio was

reviewable hy this court on certiorari. (Judicial Code,

Section 237, Amended; 28 U.S. C. A. 344.)

‘4 Petitioner’s order of remand in the George E.

Kniess case denied respondent the right to amend the

petition for removal as requested in respondent’s motion

therefor, pursuant to Judicial Code Section 274¢ (Mar. 3,

1915, c. 90, 38 Stat. 956; 28 U. S. C. A. 399).

5. The orders of remand entered by petitioner are

not reviewable by appeal or error, and being in excess of

petitioner’s jurisdiction, a writ of mandamus is the

proper method of correcting the error. *

Vv

ARGUMENT AND LAW

Propositions 1 and 2 in our summary of the argu-

ment are so inter-related that we shall discuss them as

one subject, and concisely stated, the propositions are as

follows:

1. and 2. Separable Controversy Is Determined by the

Laws of the State Where the Action Is Maintained

and the Determination of That Fact by the State

Supreme Court Fixes the Status of the Parties and

the Law Requires the United States District Court to

Give Full Faith and Credit to That Judgment.

It has always,been held that the law of the gtate

from which removal is sought determines wheter the

controversy is a separable one.“ This is admitted by

the petitioner. (Petitioner’s brief, pages 31 aad 32. Also

petitioner’s brief in su, port of petition for certiorari,

page 24.)

It is likewise well settled that the court to which

such petition for removal is presented has jurisdiction,

in the first instance, to examine the petition for removal

of the cause and to deny such removal if it shall appear

(1) Cincinnati, N. O. & T. P. Re. Co. vs. Bonn, 200 U. S. 221, 50 1. Ed.

448, 26 S. Ct. 166;

Chicago & Alton Ry. Co. vs. McWhirt, 243 U. S. 422, 61 L. Ed. 826,

37 S. Ct. 392;

Chicago Rock Island & Pacific Ry. vs. Dowell, 229 U. S. 102, 57 L.

Ed. 1090, 33 S. Ct. 684;

Norwalk, Admsx., vs. Air-Way Electric Appliance Corp., 87 F. 2) 317,

110 A. L. R. 183. . ‘ . er

6

that the petitioner is not entitled thereto. This is like-

wise admitted by petitioner. (Petitioner’s brief, page 22.)

| Kniess et al. had a right to litigate the question as to

whether the respondent and Burmeister were properly

joined, either in the state court or in the federal court.

Had they desired to do so, they could have permitted the

Common Pleas Court to issue an ex parte order of re-

moval. On the other hand, Kniess et al. could and in

this instance did request and receive a hearing and de-

termination of that question in the Court of Common

Pleas and the Court of Appeals for Lucas County, Ohio,

and in the Supreme Court of Ohio. :

It is the contention of respondent that an adequate

state remedy was available to Kniess et al. in the state

courts and having invoked that and pursued it to final

judgment, they cannot escape the effect of that adjudi-

cation.

It was the duty of the Supreme Court of Ohio to

decide the questions presented to it. That decision,

whether right or wrong, was an exercise of jurisdiction.

If the decision was wrong, that did not make the judg-

ment void, nor subject to revision by the District Court

of the United States. It merely left it open to reversal

or modification in this court, providing an appropriate

and timely proceeding was instituted. Until reversed or

modified by this court, the decision of the Supreme Court

of Ounio constituted an effective and conclusive adjudica-

tion. No court of the United States except the Supreme

Court can modify that judgment. This court will compel

(2) Burlington C. R. & N. R. Co. vs. Dunn, 122 U. S. $13, 30 L. Ed. 1159.

oe C. & O. R. Co., 65 Fed. 129, affirmed 169 U. S. 92,42 L. «

Missourt K. & T. R. Co. vs. Chappell, 206 Fed. 688.

Miller vs. Soule, 221 Fed. 493.

7

all courts of the United States to give full faith and credit

to that judgment until it reverses or modifies it in the

manner authorized by law.“

In the brief filed in support of the petition for

certiorari, it was stated (page 24):

“* * * We agree that the decision of the Su-

preme Court of Ohio was res judicata on the ques-

- tion of removability, because that question can

only be solved on a determination of the substan-

tive law of the State of Ohio with respect to joint

liability. * * #9)

However, in petitioner’s brief on the merits (page

25) it is now contended that the decision by the Supreme

Court of Ohio was not res judicata, and an attempt is

made to distinguish the cases relied on by respondent and

the Circuit Court of Appeals.“

In chronological order the first case is Baldwm vs.

lowa State Traveling Men’s A:ssoc., 283 U. S. 522, 75 L.

Ed. 1244, 51 S. Ct. 517. In this ease a suit was in-

stituted in the Missouri state court and removed to the

District Court, whereupon the defendant appeared spe-

cially and moved to quash and dismiss for want of serv-

ice. After the hearing, the motion was overruled with

, leave to plead within thirty days. No plea having been

filed, the cause proceeded to judgment. Thereafter, the

plaintiff brought suit on the judgment in the District.

Court for Iowa, and the defendant set up as a defense

that it had not been served on the Missouri judgment,

(3) Rooker vs. Fidelity Trust “0., 263 U. S. 413.

(4) American Surety Co. vs. Baldwin, 287 U. S. 156;

Baldwin vs. Iowa State Traveling Men’s Assoc., 283 U. S. 522; 75 4

Ed. 1244; 51 S. Ct. 517; °

Treinies vs. Sunshine Mining Co., 308 U. S. 66.

EL AO OPE A PRI RB APSHA LIT Ae APY BAS REA

g

and hence the judgment was invalid, etc. The plaintiff

objected to proof of such matters, claiming that the

judgment on the motion in the first case was res

\ judicata. In holding that the first judgment was res

judicata, the Supreme Court in the opinion by Mr.

Justice Roberts said:

‘*Public policy dictates that there be an end of

litigation; that those who have contested an issue

shall be bound by the result of the contest, and

that matters once tried shall be considered forever

settled as between the parties. We see no reason

why this doctrine should not apply in every case

where one voluntarily appears, presents his case

and is fully heard, and why he should not, in the

absence of fraud, be thereafter concluded by the

judgment of the tribunal to which he has fon

mitted his cause.

‘‘While this court has never been calied upon

to determine the -specific question here raised,

several federal courts have held the judgment res

judicata in like circumstances. Phelps vs. Mutual

Iife Assn., 112 Fed. 453; affirmed on other

grounds, 190 U. 8. 147; M och vs. Insurance Co., 10

Fed. 696; Thomas vs. Virden, 160 Fed. 418; Chinn

vs. Foster-Milburn Co.,; 195 Fed. 158. And we are

in accord with this view.”? (Pages 524, 525, 526.)

The second case is American Surety Company vs.

Baldwim, 287 U. S. 156. In this case a state court en-

tered a judgment against a surety company without

notice to it in violation of the due process clause of the

Fourteenth Amendment. The surety company appeared

in the state court and made a motion to vacate the judg-

ment. The state court held that it had jurisdiction to

enter the judgment, whereupon the surety company filed

suit in the federal court for an injunction, claiming that

ASLO RIE EE ENTS PSG ISLS ON aa Tea EEA dT Wg Se

9 =

the action in the state court deprived it of due pricess

of law. In holding that the decision of the state court

on the motion to vacate was final and res judicata, the

Supreme Court of the United States, in the opinion by

Mr. Justice Brandeis, said:

«“* * * Since the decision would formally con-

stitute res judicata in the courts of the state; since

it in fact satisfies the requirements of prior ad-.

judication; and since the constitutional issue as to

jurisdiction might have been presented to the State

Supreme Court and reviewed here, the decision is a

bar to the present suit insofar as it seeks to enjoin

the enforcement of the judgment for want of juris-

diction. Of. Fidelity Nat. Bank & Trust Co. vs.

Swope, 274 U. 8. 123, 130-131.”’ (Pages 164, 165,

166, 167.) (Italics ours.)

The third case is Treinies vs. Sunshine Mining Com-

“pany, 308 U. 8. 66. In that case this court held that a

final decree of an Idaho state court of general jurisdic-

tion in a suit to determine the ownership of personal

property, awarding the property to the plaintiff and hold-

ing that a Probate Court of Washington which had

awarded the property to another, under whom the de-

fendant claimed, was without jurisdiction of the subject

matter, was, as to the issue of the jurisdiction of the

state courts, res judicata in a proceeding in the federal

court interpleading the same plaintiff and defendant in

respect of the same property. The opinion by Mr. Jus-

tice Reed concluded:

‘One trial of an issue is enough. ‘The prin-

ciples of res judicata apply to questions of juris-

diction as well as to other issues,’ as well to juris-

diction of the subject matter as of the parties.”

(Page 78.) 7

10

A further illustration of the rule that any matter

once litigated is as between the parties res judicata is

given in Stoll vs. Gottlieb, 305 U. S. 165. In this case it’

appeared that a Federal District Court in a proceeding

to reorganize a corporation under Section 77b of the

Bankruptcy Act approved a plan of reorganization pro-

viding for a discharge of the debtor’s bonds and cancella-

tion of a personal guaranty thereof. One of the holders

of the guaranteed bonds brought an action in the state

court of Illinois upon the guaranty, and while that action

was pending, he unsuccessfully petitioned the United

States District Court to set aside or modify its order

upon the ground that it had no jurisdiction to extinguish

the guaranty. This court assumed that the bankruptcy

court did not have jurisdiction of the subject matter of

its order—tlie release, in reorganization, of a guarantor

~from his guaranty. The court, however, held that the -

question of jurisdiction over the subject matter was

raised and decided by the bankruptcy court, and such de-

termination was res judicata of that issue in the action

pending in the state court. This court, in an opinion by

Justice Reed, said:

‘«“* * * After a federal court has decided the

question of the jurisdiction over the parties as a

contested issue, the court 3 ay the plea of res

judicata is made has not. the power to inquire

again into that jurisdictional fact. We see no reg-

son why a court, in the absence of an allegation of

fraud in obtaining the judgment, should examine

again the question whether the court making the

earlier determination on an actual contest over

jurisdiction between the parties, did have juris-

diction of the subject matter of the litigation. In

this case the order upon the petition to vacate the

confirmation settled the contest over jurisdiction.

il

‘‘Mourts to determine the rights of parties are

an integral part of our system of government.. It

is just as important that there should be a place

to end as that there should be a place to begin

litigation. After a party has his day in court, with

opportunity td present his evidence and his view

of the law, a collateral attack upon the decision as

to jurisdiction there rendered merely retries the

issue previously determined. There is no reason

to expect that the second decision will be more sat-

isiactory than the first.”’ (Page 172.)

The opinion then reviews a large numoer of prior

decisions and refers to the statement sometimes made

distinguishing between ‘‘strictly jurisdictional facts”’ and

‘‘quasi jurisdictional facts.’’ In regard to this distine-

tion the opinion states:

«<* * * We do not review these cases as we

base our conclusion here on the fact that in an

actual controversy the question of the jurisdiction

over the subject matter was raised and determined

adversely to the respondent. That determination

‘ is res adiadiolta of that issue in this action,

whether or not power to deal with the particular

subject matter was strictly or quast-jurisdic-

tional.’’ (Page 177.)

The petitioner attempts to distinguish this line of

cases by stating that the doctrine of res judicate as ap-

plied to questions of jurisdiction ‘‘* * * is limited to

determinations by state or federal courts of their own

jurisdiction in the premises, * * *.’? (Petitioner’s brief,

page 28.) ;

We submit that there is nothing in the cases referred

to that even inferentially supports this statement. In

fact, the Sunshine Mining Company cise, supra, specifi-

cally involves a determination by an Idaho court of the

12

jurisdiction of a Probate Court of the State of Wash-

ington.

There is no logical basis upon which a different rule

can be applied in a situation such as is presented in our

case from the rule universally followed in all other cases,

that an actual contest and determination of an issue is

res judicata. ¥

_ The petitioner in his brief discusses several cases

that state, even if they do not necessarily hold, that the

Federal District Court has a right to determine the re-

movability of a cause independently of the jurisdiction

and determination of the state courts. (Petitioner’s

brief, page 23, et seq.)

As stated by this court in Webster vs. Fall, 266 U.

S. 507:

«<* * * We do not stop to inquire whether all

or any of them can be differentiated from the case

now under consideration, since in none of them

was the point here at issue suggested or decided.

The most that can be said is that the point was in

the cases if anyone had seen fit to raise it. es-

“tions which merely lurk in the record, neither

brought to the attention of the court nor ruled

upon, are not to be considered as having been so

decided as to constitute precedents. See New vs.

Oklahoma, 195 U. S. 252, 256; Tefft, Weller & Co.

vs. Munsuri, 222 U. S. 114, 119; nited States vs.

More, 3 Cr. 159, 172; The ’ Edward, 1 Wheat. 261,

275-276. * * *’? (Page 511.)

In not a single case referred to by the petitioner is

there any mention or discussion of thé applicability of

the requirement that the court give full faith and credit

to the judgment of the state court. (R. S. 905, 28 U.S.

C. A. 687.) The confusion resulting from the rule con-

na

13

tended for by the petitioner is demonstrated in the opin-

ions of virtually all of the cases petitioner cites in sup-

port of his contentions. Such confusion and the apparent

conflict between the statutes in question should be elimi-

nated by this court. We submit that it is yastly more

important that the federal courts give fall | ith atid

credit to the judgments of the state courts, that a

matter once litigated be foreclosed forever, than it is to

preserve any supposed ‘privilege in the federal court to

make a re-examination of a question that is admittedly

“<— determined by the state law and which has been properly

submitted to the state courts for determination.

One of petitioner’s contentions (petitioner’s brief,

pages 32 and 33) is that while the petitioner is subject

to the same limitations as the state court in deciding

whether or not ‘‘the cause was improperly removed”’

under Section 28 of the Judicial Code, Section 37,

‘¢* * * the power of the Federal District Court

to enforce its jurisdictional limitations is by con-

trast unlimited * * * so that if it appears to the

satisfaction of said court at np depos after such

suit has been removed thereto, that such suit does

not really and substantially involve @ dispute or

controversy properly within the vores i ion of said

court, said court must proceed no further therein,

but must dismiss or remand the suit to the court

from whence it was removed. * * *’’ (Petition-

er’s brief, page 33.) ‘s

or the citizenship of the parties as those facts existed ©

at the time of removal and not, as stated by the petitioner,

14

as those facts exist ‘‘at any time after such suit has been

removed.”’ :

It is well settled that the federal court does not lose

jurisdiction once it has attached, even though the plain-

tiff may amend to reduce his claim below the jurisdic-

tional amount; the plaintiff dismisses the cause after

the defendant has filed a ecunterclaim below the juris-

tional amount ;“® the residence of the parties is changed

or a substitution is made so that the requisite diversity

of citizenship no longer exists;‘ the plaintiff files an

amended pleading which would not have warranted a re-

moval originally ;‘*® or even if it appears from the orig-

inal petition that the defendant has a valid defense on the

merits if asserted.‘

Obviously the result of the case does not affect or

determine the jurisdiction of the federal court. If it did,

the court could never enter a judgment for the plaintiff

for less than $3,000 and could never enter a judgment

for the defendant, but would always be required to re-

mand the cause to the state courts.

The result is, as pointed out by this court in the case

(5) Kanouse vs. Martin, 15 How. 198; :

St. Paul Indemnity Co. vs. Cab Co., 303 U. S. 283.

(6) Kirby vs. America:: Soda Fountain Co., 194 U. S. 141, 146.

(7) Morgan’s Heirs vs. Morgan, 2 Wheat. 290, 297;

Mollan vs. Torrance, 9 Wheat. 537;

Dunn vs. Clarke, 8 Pet. ?;

Clarke vs. Mathewson, 12 Pet. 164;

Phelps vs. Oaks, 117 U. S. 236;

Hardenberg vs. Ray, 151 U. S. 112;

Wichita R. & Light Co. vs. Public ‘Utitlities Comm’n, 260 U. S. 48.

(8) Pullman Co. vs. Jenkins, 05 U. S. 534, 537.

(9) Interstate B. & L. Ass'n. vs. Edge Id Hotel Co., 109 Fed. 692;

Armstr vs. Walters, 219 Fed.

Mullins Lumber Co. vs. Williamscn 5 Brown Land Co., 246 Fed. 232.

de

15

of Employers Corporation vs. Bryant, 299 U. S. 374,

Sections 28 and 37 of the Judicial Code are in pari

materia ang should be construed together. The right to

removal of a separate suit or a separable controversy

depends solely upon the allegations of the petition at the

time the removal is sought. A determination by the

District Court whether ‘‘the cause was improperly re-

moved,’’ under Section 28 of the Judicial Code, or a de-

termination by the District Court whether ‘‘such suit

does not really and substantially involve a dispute or con- _

troversy properly within the jurisdiction of said District

Court,’’ under Section 37 of the Judicial Code, involve

precisely the same questions.

The petitioner contends (pages 38, et seq. of petition-

er’s brief), ‘‘The Petitions for Removal Were Insufficient

to Warrant a Removal on the Ground of Separable Con-

troversy.’’ This unquestionably merely involves a re-

view of the decision by the state courts which the peti-

tioner conceded in his brief in support of his petition for

certiorari to be res judicata. (See page 24 of that brief.)

The petitioner argues that the petitions for removal

were defective because they did not in terms state that

‘‘a separable controversy’’ existed. The existence of a

separable controversy or of a separate suit which en-

titled Armour to remove was dependent entirely upon the

allegations of the plaintiff’s petition} it is well set-

tled that the petition for removal should’ only include

‘statements of fact not already appearing on the record.“

(10) Chesapeake & Ohio Railroad vs. Cockrell, 232 U. S. 146.

~

“ ™

16

3. The Decision of the Supreme Court of Ohio was Re.

viewable by This Court on Certiorari. (Judicial Code,

Section 237, Amended; 28 U. 8. C. A. 344.)

_ It is the petitioner’s contention (petitioner’s brief,

pages 41-43) that the judgment rendered by the Supreme ~

Court of Ohio, directing the Court of Common Pleas of

that state to grart the respcendent’s petition to remove

these causes to the District Court of the United States,

was not reviewahle by this court on certiorari. The peti-

tioner admits that if the Ohio courts had ‘‘* * * refused

to permit the respondent to remove the case to the Fed-

eral District Court, then there would have been a denial

of a federal right. * * *’’%!) However, the petitioner

argues that because the federal claim was sustained, the

judgment of the Supreme Court of Ohio was not subject

to review by this court on writ of certiorari.

We submit that the petitioner’s argument is com-

pletely answered by the express phraseology of the stat-

ute in question, as it is specifically provided that ‘‘** * *

the power to review under this paragraph may be exer-

cised as well where the federal claim is sustained as

where it is denied. * * *’@ Jt is equally apparent

(11) Chesapeake & Ohio Ry. Co. vs. McCabe, 213 U. S. 207;

Cincinnati & Texas Pacific Ry. Co. vs. Bohom, 200 U. S. 221;

Missouri, Kansas & Tex. Ry. Co. vs. Missouri Rd. & Warehouse Com-

missioners, 183 U. S. 53.

(12) Judicial Code, Section 237, amended;.28 U. S. C. A. 344:

“(b) ss ilk Gk coldiauh: tad te: Sinden Cunt, by certiorari,

to require that there be certified to it for review and determination,

oe ee eee ee eee ee & tee

up by writ of error, any cause wherein a final j decree has

Cons seenased o Weer’ Be Ce Ramet out ot © Sia which a

* decision could be where is drawn in question the validity of a

roe a. calla olf Geb tnbed eens or where is drawn in question

the validity of a statute of any State on the ground of its being

repugnant to the Constitution, treaties, or laws of the United States;

17

that the asserted right of Kniess et al. to prevent re-

moval of the cases from the state courts to the federal

court was a ‘‘* * * right, privilege, or immunity * * *

claimed by either party under the Constitution * * * or

statute of * * * the United States; * * *’’ i.e., Judi-

cial Code, Section 28, Amended (28 U. S. C. A. 71).

Since the decision of the Supreme Court of Ohio

‘might have been reviewed by the Supreme Court of the-

United States, that decision was a bar to the petitioner’s

attempt to re-examine the question decided by the state

court.<1®)

4, Petitioner’s Order of Remand in the George E. Kniess

Case Denied Respondent the Right to Amend the

Petition for Removal as Requested in Respondent’s

Motion Therefor, Pursuant to Judicial Code -Section

274c. (March 3, 1915, c. 90, 38 Stat. 956; 28 U.S. C. A.

399).

The effect of the claim that one of the plaintiffs is

an alien is involved only in the George E. Rniess case

and is not involved in the other four cases.

George HK. Kniess filed an affidavit stating that by

neglecting to secure his second papers he was techni-

cally still an alien and a subject of Germany. Like all

ph

ined as

nied. @Nothing in this paragraph shall be construed to limit or detract

pb a raghin aed Pair tdfraah Alive Be Fea —s

right is conferred precoding paragraph; nor shall

that a review on a writ of error might be obtained under the preced-

ing paragraph be an obstacle -o granting a review on certiorari under

this paragraph.”

(13) American Surety Co. vs. Baldwin, supra, note 4.

18

the affidavits this was filed after respondent: had an-

swered in the District Court, a stipulation signed by all

parties had been filed, and an amended petition filed by

Kniess et al. In reply to this affidavit, respondent .

stated that it would check the citizenship of George

Kniess and, pursuant to Judicial Code Seetion 274e, 28

U. 8. C. A. 399, file its motion to amend its petition for

removal if it were proven that George Kniess was in

fact an alien. Before any check could be made by re-

spondent with the Department of Labor regarding ~

Kniess’ citizenship, the petitioner, without any finding

on the question, or reference to it or to respondent’s

motion to amend, ordered all five cases remanded.

Assuming for the sake of argument that Kniess’

alleged citizenship had any bearing on the petitioner’s

order in this one case, which respondent does not con-

cede, the respondent’s rights to amend are secured by

Judicial Code 274c, which provides:

‘‘Wherein any suit brought in or removed

from any state court to any district of the United

States, the jurisdiction of the district court is

based upon the diverse citizenship of the parties,

and such diverse citizenship in fact existed at the

time the suit was brought or removed, though

defectively alleged, either party*may amend at

any stage of the proceedings and-in the appellate

~court upon such terms as the court may impose,

so as to show on the record such diverse citizen«

ship and jurisdiction, and thereupon such suit shall

be proceeded with the same as thongh the diverse

citizenship had been fully and correctly pleaded

at the inception of the suit, or, if it be a removed (=

case, in the petition for removal’? Aes

\ ‘ 7 -

19

The question how the rights granted by ‘the above

statute, first enacted in 1915, are to be enforced had

never been passed upon prior to the decision of tke

Court of Appeals in this case. Obviously, if an amend-

ment is refused and the ¢ase dismissed, the error could

be corrected by an appeal. When, as in our case, the

motion to amend is ignored and the cause remanded,

the only method of, enforcing the right secured by this

statute is by a writ of mandamus. We submit that if

any conflict exists between Judicial Code 274c and

Judicial Code Sections 28 and 87, the provisions of

Judicial Code 274¢ should -yrevail, as it was more re-

cently enacted.

Assuraing Kniess to be an alien (and petitioner has

never made any finding in regard to that question)

under the decision of the Supreme Court of Ohio,

the George Kniess case against respondent was a separ-

ate and distinct suit from his case against defendant

Burmeister, and properly removable to the District

Court. ¢ _

We agree that a cause cannot be removed on the

ground of separable controversy when the plaintiff is

an alien. However, it is well settled that where the

plaintiff has’ joined in the same petition a separate suit

against one defendant with a separate and distinct suit

against another defendant, either separate suit may be

removed on the grounds of diversity, whethet the plain-

tiff is an alien or a citizen.“” ‘

GD Lucania, etc., vs. U. S. Corporation, 15 Fed. (24) 568;

Stewart et al. vs. Nebraska Tire & Rubber Co., 39 Fed. (2d) 309;

Tillman vs. Russo Asiatic Bank, 51 Fed. (28) 1023 ;

Hammer et al. vs. British Type Investors, inc., 15 Fed. Supp. 497;

Rogge vs. Michael Del Balso, Inc., 15 Fed. Supp. 499 ;

Y vs. Southern Pacific Co., 15 Fed. (2d) 280.

The regoing cases hold that a right of removal exists as to a “sep-

7)

90

The distinction between a separable controversy and

a separate suit had no significance until one of the

plaintiffs claimed to be an alien. However, the Supreme

Court of Ohio held in the Kniess case that two separate

suits had been improperly combined in the petition and

in fact reversed as to the defendant Burmeister, solely

on the ground that his demurrer for misjoinder of parties

should have been sustained. The holding by the Su-

preme Court of Ohio in the Kwniess case is discussed

somewhat further in Losito vs. Kruse, Jr., 136 O. S. 183

(decided January 3, 1940). After citing the Kniess case

and several others, the court said at page 187:

‘s* * © Tn such case’ there can be no joinder m

a ore action of the party rimarily liable and

the party secondarily liable use there is no

joint liability. If they are joined in an action

and this relationship. appears on the face of the

petition it is demurrable for misjoinder of: coc

defendant. If it does not appear on the

the petition but develops from the evidence on

the trial, the plaintiff may, on motion, be required

to elect as to which one of the twe he will eereee,

dismissing the other from the action, but not

necessarily from the claim. Canton Provision Co,

vs. Gauder, supra; Bello vs. City of Cleveland,

supra; Morris vs Woodburn, swpra; Vilage of

Mumeral City vs. Gilbow, supra; French, Admr.,

vs. Central Uenaticeciicn Co., 76 Ohio St. 509, 81

N. E. 751, 12 L. RB. AL (NS.) 669 ; City a

Rochester vs. Campbell,.123 N. Y: 405, 25 N

937; City of Chicago vs. Robbms, 67 U.S. G

Black) ais, 17 L. Ed. 298. de

21

In other words, had the cases remained in the state

court, the plaintiffs woald be required to file a separate

petition against Armour and a separate petition against

Burmeister“) under the provisions of Ohio General

Code 11312, which provides:

4¢Procedure if causes are misjoined. When a

demurrer is sustained on the ground of misjoinder

of several causes of action, on motion of the

plaintiff the court may allow him, with or without

costs, to file several petitions, each including such

of the causes of action as might have been joined ;

and an action shall be docketed for each of the

petitions, and be proceeded in without further

service.” .

What has been our contention in the past, and wil

be our contention in the future, is sensed by the opinion

of the Court of Appeals where it is stated: e

«<* ® * Tt is somewhat difficult to understand

why the plaintiff in the action should seek to re-

mand the case to a State Court already foredosee

‘from its consideration by the man te of the

Supreme ag £ Ohio to which it must bow.

* * #9 (109 Fed. (2d) 72, pages 75-76.) _

Entirely off the record the petiticner discusses the

right of isniess et al. to amend in the state court.

This is misleading as petitioner neglects to state that

Kniess et al. have unsuccessfully attempted to amend

in the Supreme Court of Ohio both before and after

petitioner’s purported order of remand, and likewise

unsuccessfully attempted to amend in the Common Pleas

Court of Lucas County. We know no rule of law that

would warrant the Court of Common Pleas of Lucas

(15) Compare McGowan vs. Rishel, 125 O. S. 77, 80.

£2

County, Ohio, in disregarding the mandate of the Su-

preme Court of Ohio upon the order of the petitioner.

5. The Orders of Remand Entered by Petitioner are

Not Reviewable by Appeal or Error, and Being in

Excess of Petitioner’s Jurisdiction, a Writ of Man-

damus Is the Proper Method of Correcting the Error.

The respondent concedes that an order of remand

by a District Court is not reviewable by appeal or writ

of error ‘and likewise concedes that the usual order of

remand following an original determination of the ques-

tion by the District Coart is not reviewable by way of a

writ of mandamus.“

It is the contention of Armour in the instant case

that the action of the District Court went beyond the

usual order of remand, in that the District Court pur-

ported to make a determination of a matter that had

already been submitted to and passed upon by the state

courts, and that the order of the District Court in effect

refused to give full faith and credit to the decisions and

orders of the state courts.

After an extended search, we have been unable to

find any case precisely identical with our case, where the

courts have either granted or refused a writ of man-

damus to compel a District Court to set aside an order

of remand, on the ground that the matter had been prev-

iously passed upon and decided by the state courts.

This is not particularly surprising, as it would be ex-

tremely rare for the federal courts to disregard a de-

cision of the state courts upon a question where the

state law is admittedly conclusive.

(16) Employers Reinsurance Corporation vs. Bryant, 299 U. S. 374, 378-381.

oo

‘

23 «=

However, we have found two cases where the federal

courts have issued an order of mandamus to the Dis-

trict Courts where the order of remand in the lower

courts involved something more than a mere remand

of ,the case.

The leading case,;on that question is In re Metro-

politan Trust Company (1910), 218 U. S. 312. In this

case it appeared that a suit had been brought against

the Trust Company and others in the state courts of

New York, which suit was thereafter removed to the

federal court on the ground that there was a separable

controversy. The complainant moved to remand the

eause, which motion was denied. After the removal the

Trust Company demurred. The United States District

Court sustained the demurrer and dismissed the com-

plaint as to the ‘rust Company. The other defendants

then answered, and after a final decree in the defend-

ant’s favor was entered, the complainant appealed to

the Circuit Court of Appeals, but did not seek a review

of the decree dismissing the Trust Company.

The Circuit Court of Appeals decided that there

was not a separable controversy and that the motion to

remand should have been granted. After the order of

remand was entered in the Circuit Court, the complain-

ant moved to vacate the decree and remand the cause

as to the Trust Company, which motion the court

granted. The Trust Company then applied to the Su-

preme Court for a writ of prohibition and mandamus.

In granting the writ of mandamus, the Supreme Court,

in an opinion by Justice Hughes, said:

«* * © After the term had expired, and after

- the complainant had exercised his right of appeal

to procure a review of the errors of which he

24

desired to complain, it was sought to set aside

a decree which stood unreversed* and by which

the Trust Company had been dismissed from the

cause.

‘To reach this result the Cireuit Court as-

serted the power to. vacate the decree upon the

ground that it had been rendered without juris-

diction; and the court held that it must be treated

as a nullity. bat the decree cannot be so re-

garded unless the court, upon the motion to re-

mand, was without jurisdiction to determine

whether a separable controversy existed, and

hence not merely committed error but exceeded

its authority. The decree was not a nullity un-

less the order refusing to remand was a nullity;

and the latter contention was negatived by the

decision of this court upon the application for a

writ of mandamus in Im re Pollitz, swpra. The

reversal by the Circuit Court of Appéals of the

final decree as to the other defendants, and its

direction to temand, did not make the decision of

the court of first instance any the less ‘a judicial

act, and within the scope of its jurisdiction and

discretion;’ and as that reversal and direction

did not affect the Trust Company the decree in

o alu remained in full force.’’? (Pages 320,

1.

_ The foregoing case was recently followed in an iden-

tical case by the 4th Circuit.Court of Appeals, in Wind-

hola vs. Everitt (C. C. A. 4, 1935) 74 Fed. (2d) 834.

Another case that recognizes the reviewability of

an order of a District Court which remands a case

but goes beyond the usual order of remand is Waco vs,

U. 8. F. & G. Co., 293 U. 8. 140. In this case, after

removal, the District Court dismissed a cross action

and remanded the case to the state court. This court:

held that the order dismissing the cross action, if not

“y

reversed or set aside, was conclusive and appealable. In

the course of the opinion, at page 143, the court said:

«“* ® © True, no appeal lies from the order of

remand; but in logic and in fact the decree of

dismissal preceded that of remand and was made

by the District Court while it had control of the

cause. Indisputably this order is the subject of

an appeal; and, if not reversed or set aside, is

conclusive upon the petitioner.”’

A case that distinctly states the rule for which we

are contending is Wiley vs. Judge of Allegan Court, 29

Mich. 488, at page 495 where the court says:

««* © © The tree principle upon which a major-

ity of the cases may be reconciled is that if the

inferior court has acted judicially in the deter-

mination of a question of fact, or a question of

law (at least if the latter be one properly arising

upon the case itself, and not some collateral mo-

tion or matter—that is, if the case or p ing

before it, upon the facts raised the icular

question in*such shape as to give the power

judicially thus to determine it) then such deter-

mination however erroneous cannot be reviewed.

* © © But if the case before the lower court does

not, upon its facts or the evidence, legitimately

raise the question of law or fact it has assumed to

decide, so that the court could act judicially upon

it, or so as to give the court the power judicially

to make the decision it has assumed to make, then

its action is not properly judicial and no

determination of it, nor any order resting upon

it, will preclude the remedy by mandamus. ° ° a

The foregoing decision is peculiarly appropriate

to our case. We contend, as is 80 clearly pointed out in

that case, that the District Court improperly assumed

to decide a question that was not, on the record before

26

the District Court, presented to it for determination.

In other words, we do not seek a review of the correct-

ness or incorrectness of the court’s decision but claim

that the question was not open for decision as it had -

previously been litigated by the adverse parties and

decided by the Supreme Court of Ohio.

The mere form of the application made to the Dis-

trict Court does not determine the issue decided. The

question before this court is not whether mandamus is

proper to review an order made in response to a peti-

tion designated as a motion to remand, but whether a

District Court of the United States has power to review

a decision of the Supreme Court of Ohio and in the at-

tempted exercise of that power divest itself of jurisdic-

tion of a controversy committed to it under the laws of

the United States. Mandamus is the appropriate rem-

edy where the District Court asserts a power it does

not have.” ou

Moreover, the question was ngt before the District

Court for-the further reason that Kniess et al. had

filed amended eomplaints in the District Court and

entered into stipulatipns (see paragraphs Nos. 13 and

14 of petition for wnt of mandamus), thereby waiving

any formal defects in the petition for removal. The

Supreme Court of the United States has held that such

action waives any formal defects. The case we refer

to is In re Moore, 209 U. S. 490, the first headnote in

this case being as follows:

‘In either case, the filing by the defendant of

a petition for removal, the filing by the plaintiff

(17) Metropolitan Trust Co., 218 U. S. 312;

Windholz vs. Everitt, 74 Fed. (2d) 834.

27

after removal of an amended complaint or the

giving of a stipulation for continuance, amounts

to the acceptance of the jurisdiction of the Cir-

cuit Court.”’

As we have pointed out, the question was not pre-

sented for determination to the District Court for two

reasons. First, the question had previously been deter-

mined by the Supreme Court of Ohio, and second, the

proceedings taken by Kniess et al. in filing’ amended

complaints and entering stipulations in the District

Court waived any formal defects in the petitions for

removal. :

Petitioner suggests that his jurisdiction was termi-

nated when he sustained the motion to remand and that

he is now without authority to vacate the orders to re-

mand and ‘‘execute the mandate of the United States

Circuit Court of Appeals.’’ In support of that conten-

tion, petitioner refers to Ausbrooks vs. Western Union

Telegraph Co., 282 Fed. 733, decided by the District

Court, M. D., Tennessee, Nashville Division, July 19,

1921, but an examination of that case discloses that the

court did not. consider the question of whether it had

authority to vacate the orders previously entered and

‘execute the mandate of the United States Circuit Court

of Appeals.’’ Petitioner ’s contention in this respect is

in effect an assertion of power in the District Court to

determine whether it shall execute the mandate of, the

United States Circuit Court of Appeals.

-

JN 4

wn

Vi

CONCLUSION

The question is whether it is more important to pre-

serve a supposed privilege in the District Court to make

a re-examination of a question that is admittedly deter-

mined by the state law and which has been properly sub-

mitted to and determined by the state courts, yr whether,

as we contend, it is more important that the federal courts

give full faith and credit to the judgments of the state

courts, and that a matter once litigated be foreclosed

forever. . |

We submit that the decision of the United States

Circuit Court of Appeals in this case accords full faith

and credit to the judgment of the Supreme Court of

Ohio; assures all parties a full hearing and fair deter-

mination of their contention touching upon a respondent’s

right to remove these cases to the District Court of the

Unita, States; and preserves the mutual comity and re-

spect that shonld exist between the state and federal

courts.

Respectfully submitted,

Epwarp W. Ketszy, Jr.,

; Frep A. Smita,

| Cuares -!. FauLKNER, JR.,

Joun’ P. Dovzz,

5 Counsel for Respondent.

Waza, Ketsey, eis & Harrineron,

Of Counsel.

”

EE LILLE LLL ELE LLL LLL I ————————————

~ nl

oi,

7 : &

“p 4

eal

SUPREME COURT OF THE UNITED STATES.

No. 65.—OctToser TERM, 1940.

Frank L. Kloeb, Judge of the District

—— of the United States for the} On Writ of Certiorari to

Northern District of Ohio, Westcrn| the United States Cir- s - \

Division, r euit Court of Appeals

vs. for the Sixth Circuit.

Armour & Company.

| |

| |

[December 9, 1940.]

Mr. Justice McReynoups delivered the opinion of the Court.

Respondents, Armour & Company, a Kentucky corporation, by

petition obtained from the Cireuit Court of Appeals, Sixth Cir-

euit, an order directing the U. S. District Judge, Northern District

er 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 te 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 de- |

fendant on the theory that he and the Armour Company were joint

tortfeasors. Armour and Company filed its petitions for removal

with :he Court of Common Pleas accompanied by proper removal

bonds. Ita petitions were contested by the plaintiffs and were de-

nied. The Kniess case proceeded to trial while the other cases were

_ held in abeyance and it eventually reached the Supreme Court of

Ohio, 134 O. 8, 432. 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 and Armour.

It stated the law of Ohio to be that where the responsibility of two

tortfeasors differs in degree and in nature, liability -annot be joint

and the alleged torts are not concurrent. Holding that the defend-

ant Armgur and Company had adequately preserved its exceptions 7)

to the ruling of the lower court, the cause was reversed and re-

manded to the Court of Common Pleas with instructions to grant

the removal petition, and the mandate directed the Court of Com-

>’ 2 ae a

2 Kloeb vs. Armour & Co.

+

_ Pleas to remove the cause to the District Court of the United

tates.

“** When the case came before the respondent the plaintiff moved

to remand and, notwithstanding the adjudication by the Ohio Su-

preme 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 Corpora

tion, 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

invoived a dispute or separable controversy wholly between citizens

of different states which could be fully determined as between them,

and therefore none of said catises were within the jurisdiction of the

District Court of the United States, and further that plaintiff

Kniess is an alien.’’ b

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 States, and the

district court shall decide that the cause was improperly removed,

and order the same to be remanded te 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 distriet court, or

removed from a State court to a district court of the United States,

it shall appear to the satisfaction of the said distriet court, at an

time after such syit has been brought or removed thereio, that sue

suit does not really and substantially involve a dispute or contro-

versy properly within the jurisdiction of said distriet court, or

that the parties to said suit have beer improperly or collusively

made or joined, either as plaintiffs or defendants, for the purpose

of creating a case cognizable or removable under this ehapter, the

said district court shall proeeed no further therein, but shall dis-

miss the suit or remand it to the court from which it was removed,

as justice may require, and shall make such order as to eosts as

shall be just.’’

Employers Corporation v. Bryant, 299 U. 8. 374, 380, 381,

says of these sections: ‘‘They are in pari materia, are to be con-

_ strued accordingly rather than as distinct enaetments, and, when s0

constrned, show, as was held in Morey y. Lockhart, 123 U. S. 56, 58,

-

eet REALL AOL AL EADS LEE BBA CELE eS At mnt Fn me 0

Kloeb vs. Armour & Co. 3

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 peti-

tioner to remové 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.’’

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 Su-

preme 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 28 U. S. C. A.

§ 687, 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 decision in Employers Reinsurance Corporation v.

Bryant, District Judge, supra, and in Re Pennsylvania Company,

supra, must not, in our judgment, be extended beyond the situa-

tions requiring the application of the rule there announced, that is

» to say, to cases where the issue of the petition to ie. called for

original and primary decision by the District Cou 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 notwith-

standing the issue was one involying the jurisdiction of a federal

Court, is settled by American Surety Co. v. Baldwin, 287 U. 8. 156,

58 8. Ct. 98, 77 L. Ed. 281, 86 A. L. R. 298; Baldwin v. Iowa State

Traveling Men’s Ass’n, 283 U. 8, 522, 51 8, Ct. 517, 75 L. Ed. 1244,

and the decision in Evelyn Treinies, Petitioner, v, Sunshine Mining

Co., et al., 60 8. Ct. 44, 84 L. Ed. —, announced as recently a4

November 6, 1939.

‘While the precise question here involved is one of first impres-

sion, the Sup he Court in Re Metropolitan Trust Company, 218

U. 8. 312, 31 & Ct. 18, 54 L. Ed. 1051, has drawn the distinctions be-

‘

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4 Kloeb vs. Armour & Co.

tween orders to remand erroneously issued and those issued by a Dis-

trict Judge in excess of his authority. The former may not be chal-

lenged 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 Cireuit Court of Appeals.

It derives from an inadequate appraisal of the record and of sec-

tions 71 and 80 U. S. Code, supra.

These sectigqns were designed to limit possible review of orders

remanding causes and thus prevent delay. In re Pennsylvania Co.,

—¥# U. S. 451, 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 rele-

vant 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

Chio, finds no adequate support i in the cases cited by the opinion

below: Baldwin v. Iowa State Traveling Men’s Association, 283

U. 8. 522, American Surety Company v. Baldwin, 287 U.S. 156 and.’

Treinies v. Sunshine Mining Company, 308 U. S. 66. None of these

causes involved a situation comparable to the one here presented.

Section 72, Title 28, U. S. Code, provides the requisites for re-

moving causes from state to federal courts and directs that when

complied. with, the state court shall proceed no further. The Su-

preme 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 pétition.’’ 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 con-

sidered 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.

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