Germania Fire Insurance v. Francis

Campbell, J., delivered the opinion of the court. It is earnestly contended by counsel for plaintiff in error that Francis caused his action to be discontinued by producing an order for its removal from the circuit court of Monroe county, where he had instituted it, to the district court of the United States, at Oxford, and talcing the papers of the case from the clerk’s office of the circuit court of Monroe county, whereby all trace of the case was removed. from the circuit court of Monroe, and the case lost sight of in said circuit court for three and one-half years, during which Francis was prosecuting his case in the said district court to a judgment against plaintiff in error, and defending a writ of error to said judgment in the Supreme Court of the United States, which reversed said judgment, and remanded the cause to the said district court, with directions to remand it to the circuit court of Monroe, in which it was begun, and in which, after [466] this lapse of time, it was again docketed and papers refiled, and the venue changed to Lee county. We have carefully examined the authorities cited by counsel, and have fully considered the question, and conclude that the action was not discontinued by the removal of it to the United States court, and its disappearance from the state court while it was being litigated in the federal court. There was certainly no voluntary dismissal or abandonment of his cause by Francis, and we are not disposed to hold that his mistake in supposing that he had the right to remove his cause to the United States court, shared in by the judge of the circuit court and the district c'ourt of the United States, and the delay which ensued in the prosecution of his cause, had the legal effect to discontinue the action. The right to remove a cause from a state court to the United States court exists in certain states of case, as provided by acts of Congress, and it would be a strange result that one who thought his case embraced in these acts, and who sought to avail himself of what he thought his right, should suffer the penalty of a loss of his action in the state court, when it was subsequently discovered that he and the state judge and the United States judge were in error in regarding the cause as removable. We think it like a writ of error which a plaintiff should prosecute to any interlocutory judgment of the circuit court, which, though not maintainable, might have the effect to delay action in the circuit court and prevent any step in the cause there, and would, when dismissed, have the effect to remit the case to the circuit court, which could and would proceed with it as though no interruption of the proceedings had occurred. Where a state court grants an application for removal of a cause to a United States court, it is a declension to proceed further in the cause ; but when it is ascertained that the order of removal was improper, and that the United States court has not jurisdiction, the cause revives in the state court, and should be proceeded with as though no order of removal had been made. An order [467] for removal in a case not embracéd by act of Congress is void, •and lias no effect in legal contemplation, and although its practical effect may be an interruption, improperly, of the prosecution of the cause in the state court, the cause is to be considered as having been all the time pending in the state court, which delayed to see if the United States court would take jurisdiction, and, finding it would not, proceeds to try the case thus remitted to it as though no interruption had occurred. The act of Congress, approved March 2, 1867, under which this case was removed, provides that, when the petitioner for removal shall do what is prescribed in order to a removal of his cause to the United States court, it shall be ‘ ‘ the duty of the state court to accept the surety and proceed no further in the suit.” Acting on the idea that the cause was one proper to be removed to the United States court, the circuit court of Monroe county determined to ‘ ‘ proceed no further in the suit,” and did-not until it found that the United States court had no jurisdiction of the case, when it proceeded further, and rightfully as we have said. Discontinuance at common law was a failure to continue the cause regularly from day to day, or term to term, between the ■commencement of the suit and- final judgment, and if there was any lapse or want of continuance the parties were out of court, and the plaintiff had to begin anew. The plaintiff having left a chasm in the proceedings of his cause, the defendant was no longer bound to attend. Discontinuance resulted -from the. necessity of continuances to be formally entered. As our statute dispenses with the necessity for the entry of formal continuances in order to keep a case in court and require the attendance of the defendant, it is not perceived that there can be in this state such a thing as a téchnical discontinuance, whereby a plaintiff will be out of court, because of a chasm in the proceedings of his cause. Section 679, Code of 1871, declares that an action shall be discontinued if the representative of a deceased plaintiff shall not appear and become a party to such action by the second term after the death of such party [468] shall have been suggested on the record ; but the discontinuance here spoken of is rather a nonsuit, to which the discontinuance was similar. , 3 Bl. Com., 296. ■ It is a dismissal of the case because it is not prosecuted. It, entitles defendant to be relieved from further attendance if a, representative of the deceased plaintiff shall not appear and become a party at the second term after suggestion on the record of the death of the plaintiff. We do not think plaintiff in error suffered any prejudice from the ruling of the circuit court on the pleadings, for, under the issues joined, it got the benefit of every possible inquiry it desired to make. We think the demurrer was improperly sustained to some of the sixteen pleas of defendant below, but, as we cannot see that any injury was done by reason of this, we think it was an error of which plaintiff in error can not complain. Wilkinson v. Cook, 44 Miss., 367 ; V. & M. R. R. Co. v. Ragsdale, 46 ib., 458. We think no-error was committed by the court in excluding testimony. The depositions of experts to prove the meaning of the terms “dry goods” and “groceries” in the policy of insurance were properly excluded, if for no other reason, because the witnesses did not speak of the import of those terms at Aberdeen, where the policy was effected. The question was, what was the meaning of these terms as used by the contracting parties — a merchant keeping a store of dry goods and groceries in Aberdeen, and the insurance company effecting the insurance through its local agent there? As we hold, the depositions were properly excluded for the reason stated. We forbear to say whether the testimony would have been admissible if it had been directed to the question of the understanding of such terms at Aberdeen. Perhaps it would be the duty of the court to tell the jury, as matter of law, that the terms “ dry goods ” and “ groceries,” as used in such policy, include all such goods and merchandise as are usually kept in such stores as are called dry goods and grocery stores at the place where the insured did business. [469] We think some error was committed by the circuit court in its action on the thirty-seven instructions prayed by the parties to be given to the jury; but, while particular instructions may be singled out and criticised, it is quite clear that plaintiff in error has nothing to complain of in the matter of instructions. If the court erred in refusing four out of the twenty-eight instructions asked by plaintiff in error, it abundantly cured the evil by giving twenty-four strongly expressed instructions for it, which gave defendant below (plaintiff here) the full benefit of every principle which learning and ingenuity could invoke to aid its defense. We will not disturb the verdict. It is not manifestly wrong. We cannot say it is wrong at all. The case was fairly tried on the issues between the parties. Justice seems to have been done, and, looking to the whole record, we can see no error for which the judgment should be disturbed, and it is accordingly affirmed.