STATE OF TEXAS II. DAY LAND & CATTLE 00.
STATE OF TExAS t7. DAY LAND
(CWcuU Court. W. D. Texas, ..4,UBtin DiVf.Biqn. March 6,1899.)
B.EMOVAL OF CAUSES-(JRIMINALPROCBEDING-RBMAND-AHENDMENTII.
An actionbrongbt by thl;lstate of Texas to recover the penalty prescribed by Act. Tex. Feb., 7, 1884, for ul;llawfnlly appropriating public landi, having been removed to the feCleral court, was remanded on the ground tbat the proceeding was of a crilDinal nlltnre, and not removable. Afterwards tbe complaintw8.s8.mended so as to ask additional damages under tbat law, and a second count was added, setting up, in the alternative, a civil cause of action for tbe reasonable value of use and occupation, the removal of inclosures, etc., under Act Tex. April 1, 1887. Held, the ,ca.se of action remained, distinct from tbe case made by the second count, and was not so combined with it as to permit tbe removal of the whole case. Huskins v. Railway Co., 37 Fed. Rep. 504,andEvatnB v. DilUngham, 48 Fed. Rlilp. '. .
II. . .
Tbe clause of the removal act relating to separable controversies is applicable .only to controversies between citizens of different states, and is not available to tbe defendant opposite party is a state, The clause i>f tfie removal act autborizing tbe removal of civil suits, arising under 1 the constitution or laws of tbe United States, relates only to the entire action, and does not permit the removal of a part thereof when the rest is not removable.
At Law.,Action by the state of Texas against the Day Land &: Cattle Company. Heard on motion to remand to the state court. Granted. FQr' former report,see 41 Fed. Rep. 228. O .4. Oulber8on, Atty. Gen., for the State· · .J.i1UIher &:. Toumea and· West&: McGoum, for defendant. Before MAXEY, District Judge.
MAXEY, District Judge. This suit was originally instituted by the state against the defendant in the district court of Travis county, Tex., on the 22dday of September, 1888. On the 4th day of October, 1888, a petition and bond, for removal of the cause were filed in the state court, and the record seasonably entered in this court. A motion to remand waS' made by plaintiff', and, the same being granted, the suit was restate court for trial. In that court, and subsequent to manded to the remanq.ing order, the plaintiff filed two amended petitions, the first October 12, 1891. On the same day, June 24, 1891, and the .october 12, 1891, the defendant filed a second petition and bond for removal, andthel'ecord was duly entered here January 30,1892; and the plaintiff nowmo'ves :to remand; the cause to the state court. .The of actiqD reli'ed upon by the plaintiff in its original petition is fully by .Judge ;PARDEE in.an opir.ionrendered by him when the case :was formerly before the court. State v. Cattle 00., 41 Fed. Rep. 228. In the original petition it is alleged, in effect, that plaintiff was 'the owner of 203,000 acres of land in Greer county, which defendant ap,to i1;$,own lawful authority, for the .purpose of b:erding head of cattle and 1,000 ,horses. ltd. iur__ v A9F.no.8-88
"By reason of the aforesaid unlawful inclosure of the said land by the det,Jl,e Ilforesai,d detaining fendant, said cattle and horaes upon said land for grazing purposes, by said fence and by line riding. as aforesaid, the defendant is liable and bound to pay to the plaintiff the sum of one Il'ilndted dollars foteach of'8aid'·tbreeyea'l's past on each six hundred and forty acres of land embraced in said two hundred and three thousand acres 80 inelQled and grazedupenas 'aforesaid, which makes in"'tbe;aggregate 318 orland, upon whichooehundred dollars per year jS. $umQ.f.tb.lrty.one . d.ollars per year; and fOf:tb6llaid from. 1, 1888.· ,there is due from· defendant tu plalnlliff.hefuU sum of thousar.d,. :f(jf1f nundreddollars, with interest.thereon according to ," ,r
,( " ,
.. are ,substlitl!1ti:a:Uy the same. 1'hey'embopy ODe: and the same cause of action, and their only material difference consists in the fact that the aniendthe :ec9l'.eryqf pf d,amages arising outoNbeJapse or tune,mtervemng ·between September 8, 1888, and,the filing of the amendment. Asll.' matfer of as C<?unts. The 18' simply arepetItIonoUhe aUegatloDscontalOed tni the firstaiJiifndment, and in no particular 'varies the'Cliuse of action as embodied, i!l the original. petition. Upon the second count, the petition The first paragraph of this is as'follow's:""} .! ," "If the court should hold thab the of to recover on the above alid'4;hllt plaib.tuf is not· entitled to'recover the one bundred. dolhus penalty',pJ'oYided fort by the act of tbe legislature. approved lfebruary 7. 1884, then t.be plaj.ntiff. the state of acting by and tbrough her attorney general, C. A. Culberson. by the direction of James S. governor of 'l'exas, as J:lrovided fol' by the act of the -legislature 'of the state of Texas,' approVed iAprill. 1887, pleads sud prays 4l!l. In ,the :alternative." . .. , ": . 'The'count, pi'dceedswset out theutilawful dots. of propnating the land in the origina18ndfirst amehdecl'petitionsdescrfl)ed; Then . aridsubstantiall,Y' as ,the these words: " . .. .' . (' .. byreasonoJr posof said 'lilnds amlfor:tbe removal tlfSaid fences and iriCtosu'res; and for damages :fo1'.: the use aoJl occupatiOn of said lao\l' at' 'the rate of :twenty"th0uSllPd and threehu.ndrt'd($201800) dollars peranoum. I);nd :in to. .<me ,bundred J\;nd twentYro.n/tthCilusand and, bUl,ateg ($121.800) dullarll tqthe presellttime, fru.m September and for damages and legal.interest to the time of tb\s trial'; the $a1dfenc!li inclosul:es' alid the sald6attle. and horses on sald'land owned:: bydffendant"be to the payment of damage&,tlmdjudgment'reCOvered hereIn, and to the costs, both specIal 8nd.genPl, to which the plaintiff maybe en-
. i.'" i.,
,' ,The' di8ijngulghing fuatul'es between:,the .twocoUiltii countiislbaseci:\lpbn the act gate one hundred and ninety thousand and eight h
STATE OF TEXAS ,11. DAY LAND &:
lars as or a hundred dollars per annum for each section oflandappropriated 'b1 the defendant. (2)' The second count is predicatednpon the actor 1887, and prays in the altemative for the re<lovery of a less sum, as the reasonable valu.e of the use and. occupation of the land, for the removal of the inclosures, with the additional prayer that the inclosures, cattle, and horses on the land, owned by the defendant, be subjected to the payment of the judgment and costs. Defendant sought to remove the suit as originally instituted, on the ground, employing the language of Judge PARDEE.. That the ,calise was one arising under the laws and treaties of the United States, because the lands upon which the alleged trespass was committed were lands that did not-belong to the state of 'l'exas, but did belong to the United States,' and were not within the limits and under the control of the state of Texas, but were in Greer county, a part of the Indian Territory, and that on said lands the de!.endant was a tenant at will of the United It was! held by the court, on the former motion, that "the action is clearly one to'enforce a criminal law of the state," and therefore not removable. If the grounds relied upon to remove the suit, as it now stands, are the same as those urgE'd in the first petition, it is evident that the cause must go back to the state court. In Railroad Co. v. McLean it is said by' the supreme court that"When the circuit conrt first remandeJ the cause, the order to that effect not being superseded, the state court wall reinvesled with jurisdiction, which coula not be defeated by another removal upon the same grounds and by the A diffl"rent construction of the statute, as may be readily se"n, same might dl'lays in the prepatoation ami trial of causes." lUtJ U. 2 SuP: Ct. Rep. 498. But the dEfendant insists that the grounds of the present petition are essentiallyditlerent, in that the pluintiff, in its second amenument, sets upa new cause of action, based upon the act of the legislature of 1887, which converts the suit into one of a civil nature, and thus relieves it of the objection sucoessfully urged against the right of removal on the former motion. As already stated,the first count of the'second ahletided petition embraces the sameeuuse of action as declared on in the original petition. Thatisstle is as distinctly before the court now as it was then, not withdrawn nor abandoned by the plaintiff, but strenously urged. r In the present petition for removal, the allegation is made thaithe suit arises under the laws and treaties of the United States, following in that respect' the allegations of the defemlant's first petition. Then follows the claim that the silit should be removed,because the sec6hd c01,l'nt of the second amendment filedpy the plahitiff sets upe. :new eau,se ofaction,1,lQder the ,act of 1887, which is inite nature a civil suit. in,s\1I,pport of its·contention, the defendant re:ersto Huskinsv. Railway 00., 37 Fed Rep. 504; and EVII'Tls v. Dillingham, 43 Fed. Rep. 177. Is therule'announced in those caSeS applicable to this suit? Huskins v. Railway Co. was 'a suit in 'which the plaintiff originally and Mterwards increaseq tl1eamount to '10,000. ()faction,. Judge KEy saya:
vol. 49. "
"But what was thesuitfn this caseP "The money plaintiff seeks to recover--.is' th,egravamen, the heart, the soul of his suit. The suit he began was a suit for .2\000, and such a Auit it remained ,until the closing hour of the first term' at it cQuid have been tried" when the plaintiff went for $10,000. The into court. and converted his suit for $2,000 into a $2;000 suit disappeared., It was merged into and swallowed up by a suit for $10,000. ' The life of the new suit began at the moment the first suit expired. · Plaintiff's complaint was no longer for $2,000, but it became a complaint for five tilnes that sum. " In Evans v. Dillingham it is said by Judge MCCORMICK: , ' , ',' "Tbete is no question. in my mind, that, when an 'amended petition makes different ,suit from the original petition, the limitation as to thetiIile within which the petition for removal can be presented should relate to, thr/pllW pleading of the plaintiff." " ' , These two cases, it is thought. only go to the extent holding that if the original petition fails to state a cause of action removable under the !iltatute, and the subseqQently files an amendment embracingacap.se of action !»,operly removable, in which the original suit is "swallowed up,", the, time for removal will be computed date offiling the new, pleading. from But in this suit the original cause of action is not merged in the case stated in the seconp. count of the second amended petition. To state the proposition ,most favorably for thedefEmdant, the,second count simply sets out an additional cause of action, leaving the"original suit to abide a decisionoD' its own merits. The former may bel'el1lovable. The latter isnot,for the reasonthat it is a suit Of a penal or criminiU The question then presents itself, is it permissible, upon the motion and at the election of the defenqant, to separate the suit 'into parts, and. compel plaintiff to litigs"teoin b9th courts, federaL and state, atoJieand the sarpe time?;. If not, can the controversy or cause ofaction contained in the secQnd couqt of the second amendment have the effect of removing the entire suit, and thus drawing with it to this court a cause of action embraqed in the first count, Which, is clearly not removable? The" rp.le, defendant. to remove ,sauit on account of the of a controversy from the rest of the cause,.is thus stated by the supreme court: "The· ruleis now wen established that this clause in the section refers only to suits when,:there exists · a separate and distinct cause of action,on ,which a separate and,distinct suit m.ight have been brought,and complete relief af. cause of action, with all the parties on one side can· forded as to troversy oitizensof different ljtates from those on tbe other.. To say the the case must be One capable of separation into parts. so that, in one of the parts, a oonla"OVersy wiH be presented with oitizens of one or more states on one side, a.ndcitizens of other states on thedtherl' which can be fullY.deterof the Qtherparties to the suit as it has been begun.''' Ayre8 V. 112 U. S.. 5 SliIP, Ot. Rep. 90; Fraser v· .Tennison, 106 :U.S. 191,1 SflP. Ot. Rep. 1,71. In -Ayres v.Wi.twaU the court was construing that clause of the act of 1875 which finds its counterpart in the-act of August 13', 1888, and the
STATE OF TEXAS,'" PAY loANP"" CATTLE CO.
rule announced applies equally to both laws. To authorize a removal in such cases, the suit must 1:Je of different states, not a state and a citizen. In the nature of things, a state cannot be a citizen of any state. Sane v. State, 117 U. S. 433, 6 Sup. Ct. Rep. 799. Under the clause of the statute referred to, it is evident that neither the whole of plaintiff's suit, nor a separate controversy embraced therein, can be removed. The same may be said of the local prejudice clause, which empowers the court, under circumstances named, to remand the suit as to certain defendants, and retain it as to others. But that clause only embraces suits between citizens, and, for other apparent reasons, it has no application to this suit. No other clause of the act can remotely apply to this proceeding, except the first clause of the second section, which provides:
"That 'any suit of a civlLnature, at law or in equity, arising under the constitution' or laws of the United States, or treaties made, · · ,mllY be removed by the defendant or defendants! therein to the circuit court of the United States for the proper district." 25 St. at Large, p. 434.
, This clause. ,<!-uthorizes any suit of a civil arising under the laws of the United States ortreaties made, to be removed. A part of a suit, a countiri a petition, is not embraced by its terms, although' it may be of a civil nature. ' Nor can the entire suit be, removed becau.se the first count, the original suit, embraces,a cause of action of a criIIli;. nal nature.", The statute, is not sufficiently comprehensive to entitle a party to remove a suit like the present one, and courts are without power to enlarge it by construction. The state had the' right, under rules prescribed by the supreme court of this state, to "state the cause or causes ofaetion in several different counts, each within itself presenting a combination of facts, specifically amounting to a single cause of action," (Rules District Court, No.4;) and, having elected to rely upon two countsinstead of one, it has the further rightto prosecute its suit to final determirtation in its own way. See Pirie v. Tvedt, 115 U. S. 43, 5 Sup. Ct. Rep. 1034; Railroad Co. v.Ide, 114 U. S. 52,5 Sup. Ct. Rep. 735; Little v. Giles, 118 U. S. 596, 7 Sup. Ct. Rep. 32. For the reasons assigned, the court is 0 f opinion that the cause is not removable under the act of congress, and it becomes unnecessary to discuss other interesting questions raised by the motion of plaintiff; The suit should be remanded'to the state court, and it is accordingly so ordered.
,NEW Yon, L. E.'&-W;R. Co.
;'\(' I ," ·
October 6, 189Ll
ODcrcnT . CoURT
QJ: UIider Act,Co'Ag.March § 2\ "herebycreatinr"01rcuit. courts of appeals, aud jOhit resolut.ion March 8, ll:Slfl,proVlding that the first. meeting of the new court be held t.he thlrd Tuesday ·of Juue, 1891, but alloWing appeal to existing circuit COUN until July 1st, an appeal taken to the new court June 24t.h will not be diamissed. the right having existed from the passage of t.he 8C1. '
Error from Circuit Court. 'r1uYrntU H.Cooke, for motion. Prank Spurlock, ,Bet'oreBROWN, CircuitJ'ustice, JAoxsoN, Circuit Judge, and Distri.ct Judge. '
BRP\VN, Circuit Justice, (oraUy.) In this case a motion was made to writ of error, the ground that the writ oferror was made retumllb.le more than 30 days from the day of signing the citatioll, contraryto tbeprovisions of thefourteenth rule; and upon the further ground that the judgment olthe court. below was rendereu in April, and, under ,the law l\8, it stood before the, passage of the court of aPpeals act, was ari unappea.l8:b1e judgment; as there was no court of appeals in existence at time, it is claimeli that this court has no jQ.risdiction of the case. In the o.f the. arF;ument, however, it was intimated that counsel desired, only a ruling uponth ll question of jurisdiction; and that if the court,sqpul.d hold it bad, or,could have, jurisdiction of the case, they wopJd waive the irregularity in the return of the writ. There has been a general impression among the bar that this act did not take etrect until July, excepting so far as holding the formal meet,.. ing 0,£ in that no appeals could be taken before the examination of the act, however, we are ,of the tbatit, was delligned to take effect imxnediately as to most of its provisipns. of: the act provides "that there is hereby created in each circuit a(circuit court of appeals, which shall.consist of three judges, of whom two shall constitute a quorum, and which shall be a court of record, with appellate jurisdiction." It says., "is hereby created." That certainly contemplates an immediate creation of the court. Section 3. of the act provides "that the chief justice and the associate justices of the supreme court assigned to each circuit, and the circuit judges within each circuit, and the several district judges within each circuit, shall be competent to sit as judges of the circuit court of appeals within their respective circuits, in the manner hereinalter provided;" and then there are further provisions with regard to the manner of'making up the court when the associate justice is not present, etc. 1'he third section contains, as a final clause, the following: "The first terms of ll8.id court shall be held on the second Monday in January,