U.S. Supreme Court
Insurance Company v. Dunn, 86 U.S. 19 Wall. 214 214 (1873)
Insurance Company v. Dunn
86 U.S. (19 Wall.) 214
1. Where, after a suit has been properly removed from a state court into the circuit court of the United states under the Act of March 2, 1867, which allows such removal in certain cases specified by it "at any time before the final hearing or trial of the suit," the state court still goes on to adjudicate the case against the resistance of the party who got the removal, such action on its part is a usurpation, and the fact that such a party has contested the suit in such state court, does not, after a judgment against him, on his bringing the proceedings here for reversal and direction to proceed no further, constitute a waiver on his part of the question of the jurisdiction of the state court to have tried the case.
2. The language above quoted -- "at any time before the final hearing or trial of the suit " -- of the Act of March 2, 1867, is not of the same import as the language of the Act of July 27, 1866, on the same general subject -- "at any time before the trial or final hearing." On the contrary, the word "final" in the first-mentioned act must be taken to apply to the word "trial" as well as to the word "hearing." Accordingly, although a removal was made after a trial on merits, a verdict, a motion for a new trial made and refused, and a judgment on the verdict, yet it having been so made in a state where by statute the party could still demand, as of right, a second trial, held that such first trial was not a "final trial " within the meaning of the Act of Congress, the party seeking to remove the case having demanded and having got leave to have a second trial under the said statute of the state.
The Judiciary Act of 1789, [Footnote 1] thus enacts:
"If a suit be commenced in any state court by a citizen of the state in which the suit is brought against a citizen of another
state, . . . and the defendant shall at the time of entering his appearance in such state court file a petition for the removal of the cause for trial into the next circuit court, to be held in the district where the suit is pending &c., . . . it shall then be the duty of the state court . . . to proceed no further in the cause."
Then came an Act of July 27, 1866. [Footnote 2] It was thus:
"If in any suit . . . in any state court by a citizen of the state in which the suit is brought against a citizen of another state, . . . a citizen of the state in which the suit is brought is or shall be a defendant, and if the suit, so far as relates . . . to the defendant who is the citizen of a state other than that in which the suit is brought, is or has been instituted or prosecuted for the purpose of restraining or enjoining him, or if the suit is one in which there can be a final determination of the controversy, so far as it concerns him, without the presence of the other defendants as parties in the cause, then, and in every such case, . . . the defendant who is a citizen of a state other than that in which the suit is brought, may, at any time before the trial or final hearing of the cause, file a petition for the removal of the cause as against him into the next circuit court of the United States to be held in the district where the suit is pending, . . . and it shall be thereupon the duty of the state court to . . . proceed no further in the cause as against the defendant so applying for its removal."
Finally came an Act of March 2, 1867. [Footnote 3] Its title is,
"An act to amend an act entitled 'An act for the removal of causes in certain cases from state courts,' approved July 27, 1866."
It runs thus:
"Be it enacted that the act entitled 'An act for the removal of causes in certain cases from state courts,' approved July 27, 1866, be and the same is hereby amended as follows: that where a suit may hereafter be brought in any state court in which there is controversy between a citizen of the state in which the suit is brought and a citizen of another state, such citizen of another state, whether he be plaintiff or defendant, if he will make and file in such state court an affidavit stating
that he has reason to and does believe that from prejudice or local influence he will not be able to obtain justice in such state court, may, at any time before the final hearing or trial of the suit, file a petition in such state court for the removal of the suit into the next circuit court of the United States to be held in the district where the suit is pending, . . . and it shall be thereupon the duty of the state court to . . . proceed no further in the suit."
Each of these three acts enacts that after the case is removed, in the way which they respectively provide, into the circuit court of the United States, it shall there proceed in the same manner as if it had been brought in that court by original process.
These statutes being in force, Mrs. Dunn, widow and administratrix of John Dunn, sued the Home Life Insurance Company of Brooklyn in one of the courts of common pleas of Ohio on a policy of insurance for $2,000 on her husband's life, and obtained a verdict against the company. The company moved to set aside the verdict and for a new trial. But upon consideration, the court overruled the motion, and it was "therefore considered by the court that the plaintiff recover her damages herein assessed, and the costs to be taxed."
This, of course, in any court proceeding in the course of the common law, would have been the end of all "trials," or of other relief to the insurance company, except such as it might have provided for itself through writ of error.
But the law of Ohio respecting second trials is somewhat peculiar. The matter does not, as at common law and in most of the states, rest in the discretion of the court trying the case, but rests in the option of the suitor himself. One of the statutes of the state, [Footnote 4] known as the Second Trial Act, thus enacts:
"SECTION 1. A second trial may be demanded and had in any civil action which has been . . . instituted in any court of common
pleas in this state, in which said court has original jurisdiction, and in which either party has the right by law to demand a trial by jury . . . and after a judgment or final order has been rendered, upon the terms and in the manner hereinafter provided."
"SECTION 2. Any person desirous of such second trial . . . shall at the term of the court at which judgment was rendered, enter . . . into an undertaking within the time hereinafter limited, with security . . . payable to the adverse party in such sum as may be fixed by the court, and conditioned to the effect that the party obtaining such second trial shall abide and perform the order and judgment of the court, and pay all moneys, costs, and damages which may be required or awarded against him consequent upon such second trial."
Under this statute of the state, the insurance company after trial and judgment demanded and had leave to have "a second trial." The company gave a bond in $4,000 conditioned that it should abide and perform the judgment of the court and pay all moneys which might be required of or awarded against it consequent upon a second trial by the Court of Common Pleas of Hamilton County.