L. & H. Blum v. Thomas & Germany

L. & H. Blum v. Thomas & Germany. (Case No. 1286.) 1. Jurisdiction.— A state court can take no action in a cause once pending before it, after the filing in a circuit court of the United States of a sufficient petition for its removal to that court; following Tex. & P. R. R. Co. v. McAllister, 69 Tex., 349. 2. Jurisdiction.— When both the appellees and all the appellants except one were citizens of Texas, and that one was the mercantile partner of the two other appellants, doing business in Texas, and as such partner was sued jointly for a wrongful conversion by his firm of goods, there being nothing to show any separate claim or question in which the non-resident partner was alone interested, no transfer of the cause can be made to a circuit court of the United States on the ground that one of the partners was a citizen of another state; following Corbin v. Van Brunt, 105 U. S., 577; Removal Cases, 103 U. S., 457, and other cases cited in opinion. 3. Damages.— When suit is brought for damages for the illegal conversion of goods, if the plaintiff be entitled to recover, the measure of damages would ordinarily be the value of the goods at the time of their conversion with legal interest thereon from that time. Appeal from Van Zandt. Tried below before the Hon. John C. Robertson. Suit in the district court of Van Zandt county against appellants, alleging the residence of Hyman Blum to be in New York, and the other defendants in Galveston county and Van Zandt county, Texas. They claimed damages from defendants for the wrongful and forcible conversion and appropriation by defendants (appellants) of merchandise belonging to plaintiffs valued at $1,297.20, and for $1,000 to cover loss of profits expected to be derived from the sale of said merchandise. The petition was filed August 3,1880. November 11, 1880, all the defendants filed a petition, oath and bond for removal of the cause to the federal court, on the ground that Hyman Blum was a resident of New York. April 25, 1882, defendants filed general and special exceptions, and a special answer alleging that plaintiffs (appellees) had no title to the merchandise claimed by them, but that the same belonged to one J. H. Palmer, who had made a pretended and fraudulent sale to appellees, and that appellants had seized said merchandise by virtue of a writ of attachment against Palmer. Trial by jury and verdict for plaintiffs (appellees) for $1,487.45, upon which, after a remittitur of $11.75, judgment was rendered for plaintiffs (appellees) against all the defendants for $1,475.70. The assignments of error were as follows: 1. The court erred in permitting the plaintiffs, at the November term of this court, 1880, to dismiss as to one of the defendants, Hyman Blum, a non-resident of this state, after the filing of the defendants’ petition and bond for removal of this cause to the United States circuit court. 2. The court erred in overruling the defendants’ petition for the removal of this cause to the United States circuit court, holding session at Tyler, as will fully appear by bill of exceptions No. 2, taken at said November term, 1880. 4. The court erred in charging the jury that if they found for 'the plaintiffs, they could find for them the value of the goods converted, not to exceed $1,297.20, and the interest on such value from the date of such seizure to this date, at eight per cent, and you should so find the value and interest by your verdict. 7. The court erred in charging the jury as follows: “ If, under these rules, you find for the plaintiffs, you will return a verdict for the plaintiffs for the value of these goods, not to exceed the amount claimed, with interest at the rate of eight per cent, from the time of said seizure.” Scott & Levi and C. B. Kilgore, for appellants. R. H. Allen, for appellees. [MAJORITY — West, Associate Justice.] West, Associate Justice. After a good and sufficient petition for the removal of a cause from the state' court, where it is pending, to the United States circuit court, has been filed in the former court, it can enter no further order and take no further action in such cause. Tex. & P. R. R. Co. v. McAllister, 59 Tex., 349, and authorities there cited. If, then, the petition and other steps taken for removal in this case are good and sufficient, all the subsequent proceedings of the district court of Van Zandt county were without authority. Let us, then, inquire whether or not the proceedings did in fact disclose good and sufficient grounds for the removal of the cause under consideration ? The petition for removal and the whole record, taken together, show that the character of the controversy, and the attitude of the parties to it, was not such as to authorize the removal of the entire cause in the manner in which it was sought to be done. Both the appellees and all of the appellants except one are citizens of the state of Texas. That one does business in Texas, and is the mercantile partner, resident in New York, of two of the other appellants, and as such partner is sued jointly with them for the value of certain goods, wares and merchandise, on which appellants are alleged to have wrongfully caused to be levied a writ of attachment, they (the appellants) asserting that the property so by them attached belonged to one I. M. Palmer, who was indebted to them. The appellees thereupon, instead of seeking to recover the goods so seized, as they might have done, elected to bring this action for their conversion against the commercial firm of L. & H. Blum, of Galveston, Texas, one of whom, it seems, happens to be a citizen of New York. They also join in this suit for the damages sustained by the conversion the remaining defendant, the constable Davis, who, under the direction of the commercial firm of L. & H. Blum, levied the writ of attachment in question and made the seizure out of which this suit grows. This is the whole case. Neither the pleadings nor the proof show any separate claim or question in which the joint partner, who is a citizen of -New York, is alone interested. The case presents no special features that are sufficient, under the law of congress, to authorize the action desired. The petition fails to show sufficient grounds for the removal. Since the petition for removal was filed in this case these questions have, in more than one shape, been presented to, and passed upon by, the supreme court of the United States, and guided by their action, as we will and ought to be in construing a federal statute, we believe the petition and proceedings are not sufficient in this case to authorize the removal of the cause. Corbin v. Van Brunt, 105 U. S., 577; Hyde v. Ruble, 104 U. S., 407; Blake v. McKim, 103 U. S., 336; Removal Cases, 100 U. S., 457; Tex. & P. R. R. Co. v. McAllister, cited supra, and cases there cited; Barney v. Latham, 103 U. S., 205. See, also, in this connection, the following cases: Clark v. Chicago, M. & St. P. R. R., 11 Fed. Rep., 355; Bates v. Days, 11 Fed. Rep., 528; Van Brunt v. Corbin, 14 Blatch., 496; Petterson v. Chapman, 13 Blatch., 395; Hervey v. Illinois & M. R. R. Co., 7 Biss., 103; N. J. Zinc Co. v. Trotter, 23 Int. Rev. Rec., 410. The only other assignment of error that it is deemed necessary to allude to is the one bringing in question the correctness of the charge of the court in instructing the jury on the subject of allowing interest on the value of the goods from the date of their illegal conversion to the time of trial at eight per cent, per annum. This charge is claimed to be erroneous and not warranted by the pleadings. Under the state of the pleadings and the facts of the case the charge seems to be favorable enough to the appellants. If the appellees were entitled to any 'moneyed judgment, under the pleadings and proof, against the appellants, the amount for which the judgment was rendered was not increased by the action of the court in giving the charge complained of. Nor do we believe that the charge was, under all the circumstances of the case, erroneous. Wallace v. Finberg, 46 Tex., 40; Weaver v. Ashcroft, 50 Tex., 427. Affirmed. [Opinion delivered October 15, 1883.]