Before MAJOR, Chief Judge, and DUFFY and FINNEGAN, Circuit Judges.
This suit was instituted in the Circuit Court of Cook County on October 16, 1947. The plaintiff Victory Cabinet Company, an Illinois corporation, sought to recover from six insurance companies the sum of $25,000 with interest under the terms of business interruption policies issued by the defendants. The Baltimore American Insurance Company of New York filed its petition and bond for the removal of the cause to the District Court of the United States for the Northern District of Illinois, Eastern Division.
The transcript of removal record was filed in the District Court on December 10, 1947. On December 17, 1947, plaintiff moved to remand the cause to the Circuit Court of Illinois. The motion to remand was denied on January 19, 1948.
Thereafter, in February 1949, the cause was heard by the District Court, without the intervention of a jury. Judgment was entered for the defendants and against the plaintiff for costs.
On this appeal the plaintiff-appellant contends:
1. That the trial court erred in refusing to remand the case to the state court.
2. It was error to hold that plaintiff had no cause of action because it failed to file proof of loss - (a) because no proof of loss was required under the business interruption provisions of the policies, and (b) because the defendants waived proof of loss, and
3. The trial court erred in failing to find issues for plaintiff.
We propose to examine these contentions in the order in which they are stated.
I. Since the removal of this case from the courts of Illinois took place prior to September 1, 1948, the applicable statute is the Act of March 3, 1875 as amended and in force in December 1947, 28 U.S.C.A. §§ 71-72, 1927 Edition.
That statute provides: "When in any suit mentioned in this section there shall be a controversy which is wholly between citizens of different states, and which can be fully determined as between them, then either one or more of the defendants actually interested in such controversy may remove said suit into the district court of the United States for the proper district." 28 U.S.C.A. § 71, 1927 Ed.*fn1
In Madisonville Traction Co. v. St. Bernard Mining Co., 196 U.S. 239, on page 244, 25 S. Ct. 251 on page 253, 49 L. Ed. 462, the Supreme Court said:
"Certain principles, relating to the removal of cases, have been settled by former adjudications. They are:
"1. If a case be a removable one, that is, if the suit, in its nature, be one of which the Circuit Court could rightfully take jurisdiction, then upon the filing of a petition for removal, in due time, with a sufficient bond, the case is, in law, removed, and the state court in which it is pending will lose jurisdiction to proceed further, and all subsequent proceedings in that court will be void. New Orleans M. & F. Railroad Company v. Mississippi, 102 U.S. 135, 141, 26 L. Ed. 96, 98; Baltimore & O. Railroad Co. v. Koontz, 104 U.S. 5, 14, 26 L. Ed. 643, 645; National Steamship Company v. Tugman, 106 U.S. 118, 122, 1 S. Ct. 58, 27 L. Ed. 87, 89; St. Paul & Chicago Ry. Co. v. McLean, 108 U.S. 212, 216, 2 S. Ct. 498, 27 L. Ed. 703, 704; Crehore v. Ohio, etc. Railway Co., 131 U.S. 240, 243, 9 S. Ct. 692, 33 L. Ed. 144; Kern v. Huidekoper, 103 U.S. 485-493, 26 L. Ed. 354, 357; * * *.
"2. After the presentation of a sufficient petition and bond to the state court in a removal case, it is competent for the circuit court, by a proceeding ancillary in its nature - without violating § 720 of the Revised Statutes * * * forbidding a court of the United States from enjoining proceedings in a state court - to restrain the party against whom a ...