City of New Orleans v. Seixas

35 La. Ann. 36

• Court: Supreme Court of Louisiana
• Decided: January 15, 1883
• Docket: No. 7547
• Status: Published

Opinions

On Motion to Dismiss.

The opinion of the Court was delivered by

Manning, J.

The appellees move to dismiss on three grounds:

1. That no appeal lies from an order removing a cause to the Circuit Court of the United States.

The contrary has been repeatedly held by this Court. State ex rel. Coons vs. Judge, 23 Ann. 29, and cases therein cited; Goodrich vs, Huuton, 29 Ann. 372; Tunstall vs. Madison Parish, 30 Ann. 472.

2. If such an appeal lies, it can be taken only by petition and citation.

No law nor reason is given for this ground and we know of none. Tiie appeal herein was taken by motion in open court on the same day the order of removal was made, and two days afterwards the appellees were even formally notified of it through the sheriff.

3. That the appellant has acquiesced in and voluntarily executed the order appealed from by appearing in the case in the U. S. Court, and by trying questions in that Court on the merits.

We have already held that on a motion to dismiss on the ground of acquiescence, the issue of fact, if disputed or doubtful, must be referred to the lower court for hearing. N. O. Rail. Co. vs. Cres. City R. R. Co., 33 Ann. 1278. There is a certified copy of proceedings taken in the U. S. Court before us, and an affidavit of the City counsel, and giving to them the consideration we would if introduced in the lower court on a reference, we find they do not sustain the allegation of acquiescence.

The only proceedings submitted to us are a rule upon the sheriff to shewr cause why he should not deliver to the Marshal the certificates of stock in the Water Works Company which had been sequestered; and another to set aside all the writs of injunction and sequestration that had been taken in the State Court; and a third to compel the Company to transfer the stock theretofore sequestered and released, upon which the Company moved that the City of New Orleans be made a party to the rule, and that being done the plaintiff appeared and resisted the rule.

There was thus neither a voluntary appearance nor execution of the order appealed from. The defendants, having procured the removal of the cause to the U. S. Court, there initiate proceedings that provoke and compel the interposition of the plaintiff and his appearance in that forum, and then plead his appearance as a bar to the further hearing of the case in the State Court. This is dragging one against his will to a place, and then pleading his enforced presence there as a reason why he should not return whence he came.

It is settled that if a party failed in his efforts to obtain a removal and wTas forced to trial in the State Court, his appearing there and contesting the case is not a w'aiver of his right. Ins. Co. vs. Dunn, 19 ; The Removal Cases, 10 Otto, 457; Dillon on Removals, $$ 84, 88.

It would seem it ought to be equally clear that if a party failed in his efforts to prevent a removal and was forced to trial in the U. S. Court, his appearing there and contesting the case should not be a waiver of his right to a trial in the State Court, nor be considered an acquiescence in the order of removal, if he has continued to maintain that right by appealing from that order and by prosecuting such appeal with diligence.

The motion is refused.