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CHICAGO, ST. P., M. & OMAHA RY. CO. V. ROBERTS, 141 U. S. 690 (1891)

U.S. Supreme Court

Chicago, St. P., M. & Omaha Ry. Co. v. Roberts, 141 U.S. 690 (1891)

Chicago, St. Paul, Minneapolis and

Omaha Railway Company v. Roberts

No. 1417

Submitted November 16, 1891

Decided December 7, 1891

141 U.S. 690


This Court has no jurisdiction to review in error or on appeal, in advance of the final judgment in the cause on the merits, an order of a Circuit Court of the United States remanding the cause to the state court from which it had been removed into the circuit court.

McLish v. Roff, ante, 141 U. S. 661, affirmed and followed.

The Court stated the case as follows:

This is a motion to dismiss the writ of error herein for want of jurisdiction, with which is united a motion to affirm the judgment of the court below. The case is this: on the 1st of November, 1890, the defendant in error, John Roberts, brought an action in a state court of Minnesota against the Chicago, St. Paul, Minneapolis and Omaha Railway Company to recover damages for personal injuries alleged to have been sustained in consequence of the negligence of the company while he was in its employ as a fireman on one of its locomotives running between the City of St. Paul and the Village of St. James in that state. The damages were laid at $30,000.

The railway company very soon thereafter (the exact date not appearing from the record) filed with the clerk of the state court, without notice to the court at all, its petition and bond for the removal of the cause into the United States Circuit Court for the District of Minnesota on the ground of diverse citizenship of the parties, and on the 3d of November of that year there was filed in the circuit court a certified transcript of the record from the state court, under the hand and seal of the clerk of the state court. On the same day, the railway company filed an answer in the circuit court to the merits of the action. Up to this time, there does not appear to have

Page 141 U. S. 691

been any order entered in the state court touching the removal, nor even that the state court was aware of the petition for removal having been filed, nor does it appear that the circuit court's attention had as yet been called to the case.

On the 13th of January, 1891, the plaintiff entered a special appearance in the circuit court for the purpose of objecting to the jurisdiction of that court, and moved that the cause be remanded to the state court for the following reasons: (1) The action was not, and never had been, in the circuit court; (2) the action was never removed from the state court; (3) a judgment had been duly rendered and entered in the state court in the cause, in favor of the plaintiff and against the defendant, and within the past fifteen days, and since the filing of a transcript of the record in the circuit court, the defendant appeared in the action in the state court, and did therein on the 3d of January, 1891, move the state court to have the aforesaid judgment against it vacated and set aside, which motion was then pending, upon its merits, in the state court, and argument upon it had been continued, by consent of both parties, until January 17, 1891; and, (4) by making said motion and said appearance in the state court, the defendant submitted itself to the jurisdiction of the state court in the action, and thereby waived any and all right which it possessed to a removal of the cause to the circuit court. Argument was had on this motion, and on the 31st of March, 1891, the circuit court entered an order sustaining the motion and remanding the cause to the state court. 45 F. 433. To reverse that order, this writ of error is prosecuted.

Page 141 U. S. 693

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