US SUPREME COURT DECISIONS

The right of a defendant who has petitioned for removal of a case to the federal court cannot be extended beyond what is necessary to defend the case; he cannot deny the jurisdiction after invoking it for affirmative relief.

A defendant's right to remove to the federal court is amply protected. He may file his record in the circuit court, and thereby completely take jurisdiction from the state court.

Even though a defendant's petition to remove is wrongfully denied by the state court, and in his answer he protests against the right of the state court to retain jurisdiction, if he asserts an affirmative remedy in the state court, as in this case in which he brought in a third party for liability over, he submits his whole case, and cannot attack the action of the state court in denying his petition for removal in this Court on writ of error.

100 Tex. 556 affirmed.

This action was instituted by defendant in error against plaintiff in error, the Texas & Pacific Railway Company, hereinafter called the Texas & Pacific Company, and J. M. Tucker, its agent, for wrongfully billing and shipping 712 head of cows and calves via one road, though they were requested to be shipped via another, whereby they were required to go twice as far, and were seriously injured and damaged thereby.

It is alleged in the original petition that plaintiffs in the action, defendants here, were residents of the County of Jack, State of Texas; that Tucker resided in the County of Palo Pinto in said state, and that the Texas & Pacific Company

"is a body corporate, duly incorporated under the federal statutes, with an office and station in the counties of Palo Pinto and Parker, in the State of Texas. "

Page 214 U. S. 154

The Texas & Pacific Company filed an answer, and at the same time filed a petition and bond to remove the cases to the Circuit Court of the United States for the Northern District of Texas, sitting at Fort Worth. The petition alleged as the ground of removal that Tucker was improperly and wrongfully joined with the company for the sole and only purpose of preventing it from removing the case to the United States circuit court. That the suit against the company was a suit arising under the laws of the United States, and more especially under the law of the United States constituting the charter of the company, under which it was incorporated. Tucker adopted the statements of the petition and joined in the application for removal. The application was denied, and an exception was entered to the ruling. The Texas & Pacific Company, protesting against the right of the court to hear and determine the suit, filed its amended original answer, among other defenses alleging that "it carried and delivered the cattle to Paris, Texas, safely and carefully on reasonable time," and further alleging that the St. Louis & San Francisco Company was duly incorporated and operated its line of railway in Lamar County, Texas, and had a local agent at Paris, and that most of the damage complained of by plaintiff (defendant in error) occurred on the line of that road. The Texas & Pacific Company asked that the St. Louis & San Francisco Railroad Company be made a party defendant, and that citation be served on it, that it be required to answer in the case, and that, if plaintiff should recover against the Texas & Pacific Company, the latter have judgment against the St. Louis & San Francisco Company for all such damages as were caused by it.

Subsequently, a second amended original answer was filed by the Texas & Pacific Company in which it enlarged its defenses, and, in what it called a "special and separate answer," averred its careful transportation of the cattle, and again averred the negligence of the St. Louis & San Francisco Company, and that, but for such negligence, the damages of chanrobles.com-red

Page 214 U. S. 155

which plaintiffs complain would not have occurred. The prayer of the answer was as follows:

"Wherefore, this defendant prays that citation be issued to the said St. Louis & San Francisco Railroad Company, by service upon its local agent herein aforesaid, as the law directs, and that, upon hearing hereof that the damages and injuries sustained by plaintiffs in the shipment of said cattle be, according to law, apportioned between the defendant and the St. Louis & San Francisco Railroad Company, and that this defendant he held liable only for such damages as occurred to said cattle while the same were in its possession, and that such damages and injuries as accrued to said cattle while same were in the possession of the St. Louis & San Francisco Railroad Company and its connecting carriers be charged to it. But, if this defendant be mistaken in this, then it prays that, upon hearing hereof, that it have judgment over and against the said St. Louis & San Francisco Railroad Company for the full amount of any judgment that may be rendered against this defendant upon the trial hereof, and that it recover its costs in this behalf expended, as it will ever pray, etc., and for such general and special relief in law or equity as it may be entitled to under the law and the facts."

A citation was issued in accordance with this prayer, and the St. Louis & San Francisco Company was summoned to appear "to answer the said amended answer of the Texas & Pacific Railway Company, filed as aforesaid on the 7th day of April, A.D.1904." The citation was duly served, together with certified copies of plaintiff's original petition and the amended answer of the Texas & Pacific Company, as directed by the citation. The St. Louis & San Francisco Company appeared in the action. In what is called its first amended original answer, it demurred "generally to the answer and cross-action" of the Texas & Pacific Company, on the ground that the same failed to show a cause of action. The answer also denied all the allegations of the "said pleadings of the Texas & Pacific Company," set up other defenses, chanrobles.com-red

Page 214 U. S. 156

and alleged that, if the cattle were damaged by delay in shipment, "that the fault or liability" was that "of the Texas & Pacific Railway Company in not routing said cattle as requested by the plaintiffs and as demanded by the exigencies of the shipment," and "prayed to be hence dismissed with its costs." The issue thus made up was tried by the court, and resulted in a judgment against the Texas & Pacific Company and Tucker for $3,600, and a judgment against the St. Louis & San Francisco Company in favor of the Texas & Pacific Company for $1,800. All the defendants appealed to the court of civil appeals for the second judicial district, sitting at Fort Worth. That court reversed the decision and remanded the case, holding that the trial court erred in overruling the application for removal and entertaining jurisdiction of the case. A motion for rehearing was made and denied, and the plaintiffs (defendants in error here) applied to the Supreme Court of Texas for writ of error, which was dismissed for want of jurisdiction, but was, on motion for rehearing, granted, and, on the second of May, 1906, the supreme court reversed the court of civil appeals, deciding that the case was not removable, and remanded the case for decision on the other questions.

On the return of the case to the court of civil appeals, that court, on the sixteenth of June, 1906, affirmed the judgment of the district court. A motion for rehearing was denied, and, on writ of error to the supreme court, the latter court affirmed the judgment of the court of civil appeals. chanrobles.com-red

Page 214 U. S. 158