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Eastern v. Canty

OPINION FILED MAY 18, 1979.

ROBERT EASTERN, APPELLEE,

v.

VIC CANTY ET AL. — (NELSON HAGNAUER, APPELLANT.)



Appeal from the Circuit Court of St. Clair County, the Hon. Richard P. Goldenhersh, Judge, presiding.

MR. JUSTICE WARD DELIVERED THE OPINION OF THE COURT:

The plaintiff, Robert Eastern, filed a complaint in the circuit court of St. Clair County for declaratory and injunctive relief against the defendants, Vic Canty, chairman of the county board of St. Clair County, Nelson Hagnauer, chairman of the county board of Madison County, and the Metro-East Sanitary District, a public corporation organized under the Metro-East Sanitary District Act of 1974 (Ill. Rev. Stat. 1977, ch. 42, pars. 501-1 through 505-5).

The trial court denied motions to dismiss made by Hagnauer and the district, and on February 2, 1978, it granted a motion by the plaintiff for summary judgment, holding that section 3-1 of the Act (Ill. Rev. Stat. 1977, ch. 42, par. 503-1) violated the equal protection clause of the Federal Constitution. In his complaint the plaintiff sued not only as an individual but as a representative of the commissioners of the district and also as a representative of the residents, voters, and taxpayers of that portion of the district located in St. Clair County. The trial court did not determine the question of the plaintiff's standing to sue in a representative capacity, but rendered its judgment only on the basis of the plaintiff's right to sue as an individual. The court also granted a permanent injunction preventing the defendants from removing the plaintiff from office and replacing him with a commissioner appointed by defendant Hagnauer or any successor to the latter. Hagnauer appealed to this court under Rule 302(a) (58 Ill.2d R. 302(a)).

We consider first whether the circuit court had jurisdiction to enter its judgment order of February 2, 1978, and an earlier order of December 5, 1977, which denied Hagnauer's motion to dismiss and granted a temporary injunction. The jurisdictional question arises because of Hagnauer's removal or attempted removal of this case to the United States District Court for the Southern District of Illinois. Although neither party refers to this matter, the record on appeal contains a copy of a verified petition for removal filed in the district court on September 30, 1977. A copy was also filed on the same date with the clerk of the circuit court. The record contains no further reference to the removal. Though the parties do not discuss the matter, it is our obligation to take notice of matters such as this which go to the jurisdiction of the circuit court. Cf. People ex rel. Compagnie Nationale Air France v. Giliberto (1978), 74 Ill.2d 90, 105.

Section 1441(a) of the Federal judicial code (28 U.S.C. § 1441(a) (1976)) makes any case involving a Federal question removable. Section 1446(d) (28 U.S.C. § 1446(d) (1976)) requires that a bond be posted when a petition for removal is filed, and section 1446(e) (28 U.S.C.A. sec. 1446(e) (Supp. 1978)) provides as follows:

"Promptly after the filing of such petition for the removal of a civil action and bond the defendant or defendants shall give written notice thereof to all adverse parties and shall file a copy of the petition with the clerk of such State court, which shall effect the removal and the State court shall proceed no further unless and until the case is remanded." (Emphasis added.)

It is universally held that when a petition for removal has been filed in Federal district court and the other acts specified by section 1446(e) have been performed, the State court loses jurisdiction to proceed further until the case is remanded. Even if the basis of the district court's remand is that the case was not removable, no action taken by the State court in the interim can stand. While the point has not previously arisen in this court, our appellate court has correctly, we consider, so held. People v. Martin-Trigona (1975), 28 Ill. App.3d 605; People v. Martin-Trigona (1976), 36 Ill. App.3d 482. See also South Carolina v. Moore (4th Cir. 1971), 447 F.2d 1067; United States ex rel. Echevarria v. Silberglitt (2d Cir. 1971), 441 F.2d 225; State v. Francis (1964), 261 N.C. 358, 134 S.E.2d 681; Schuchman v. State (1968), 250 Ind. 408, 236 N.E.2d 830, all cited in the first of the Martin-Trigona cases.

The same conclusion has been reached in numerous other decisions. See Hopson v. North American Ins. Co. (1951), 71 Idaho 461, 233 P.2d 799; Bean v. Clark (Miss. 1956), 85 So.2d 588; State ex rel. Gremillion v. NAACP (La. 1956), 90 So.2d 884; Adair Pipeline Co. v. Pipeliners Local Union No. 798 (S.D. Tex. 1962), 203 F. Supp. 434, aff'd (5th Cir. 1963), 325 F.2d 206; Fossey v. State (1970), 254 Ind. 173, 258 N.E.2d 616; State v. Price (1972), 15 N.C. App. 599, 600-01, 190 S.E.2d 403, 404; Davis v. Davis (S.C. 1976), 229 S.E.2d 847; City of Lake Charles v. Bell (La. 1977), 347 So.2d 494, 497-98; Cavanagh v. Cavanagh (R.I. 1977), 380 A.2d 964; People v. Wynn (1977), 73 Mich. App. 713, 253 N.W.2d 123; Annot., 38 A.L.R. Fed. 824 (1978); 14 C. Wright, A. Miller & E. Cooper, Federal Practice & Procedure sec. 3737 (1976).

Under section 1446(e) the filing of a petition for removal must be followed promptly by written notice to all adverse parties and the filing of a copy of the petition in the State court. As noted previously, no question can be raised here as to the latter requirement. With respect to the requirement of prompt written notice to the plaintiff, however, the petition for removal does not allege, nor does the record show, the giving of such notice, and language in Crown Construction Co. v. Newfoundland American Insurance Co. (1968), 429 Pa. 119, 239 A.2d 452, and other decisions suggests that, like failure to file a copy of the petition in State court, lack of prompt notice to adverse parties also amounts to a failure to perfect removal. (See 429 Pa. 119, 125, 239 A.2d 452, 455; Dorsey v. State (Ind. App. 1976), 357 N.E.2d 280; State v. Stewart (1973), 21 Ariz. App. 123, 124, 516 P.2d 332, 333; Donlan v. F.H. McGraw & Co. (E.D.N.Y. 1948), 81 F. Supp. 599, 600; Beleos v. Life and Casualty Insurance Co. (E.D.S.C. 1956), 161 F. Supp. 627, 628-29; Berberian v. Gibney (1st Cir. 1975), 514 F.2d 790, 792-93.) Because of subsequent action taken by the district court in this case it is unnecessary to decide that question, however.

Upon his inquiry the clerk of this court was advised that on November 4, 1977, the district court entered an order dismissing the petition for removal. The basis of the order, a copy of which we have examined, was not that prompt notice of the removal was wanting, but that venue was improper for the reason that St. Clair County is located in the Eastern District of Illinois, not the Southern District. See 28 U.S.C. § 93(c) (1976).

Section 1447(c) of the judicial code (28 U.S.C. § 1447(c) (1976)) provides:

"If at any time before final judgment it appears that the case was removed improvidently and without jurisdiction, the district court shall remand the case, and may order the payment of just costs. A certified copy of the order of remand shall be mailed by its clerk to the clerk of the State court. The State court may thereupon proceed with such case."

Had the order of November 4 remanded the case, the circuit court would thereby have reacquired jurisdiction. Brown v. State Farm Mutual Automobile Insurance Co. (Tex. Civ. App. 1969), 449 S.W.2d 93; Davis v. Davis (S.C. 1976), 229 S.E.2d 847, 848.

While the order here did not remand the case, that was unnecessary, as it was based on a determination that the filing of the defective petition had not effected a removal, and the order served to terminate the proceedings in the district court. In In re MacNeil Bros. Co. (1st Cir. 1958), 259 F.2d 386, a purported petition for removal had been filed by one who was not a defendant, and the district court dismissed the petition without remanding the case. In commenting upon that disposition of the case the court of appeals observed:

"[T]he effect of the order of dismissal of the petition for removal was not to dismiss the original complaint which the District Court considered as never having been removed from the jurisdiction of the State court, but to leave the said case pending on the docket of the [State court]; and so far as we can see under the peculiar circumstances, that Court will not have to wait for a technical order of `remand' before proceeding to exercise its jurisdiction to dispose of the case." 259 F.2d 386, 389.

We think this observation is applicable to the "peculiar circumstances" of the present case. In this connection we note that the clerk of the district court did not mail to the clerk of the circuit court a copy of the order of November 4. Even if that order had been cast in terms of a remand, however, this omission, for the reasons given in Brown v. State Farm Mutual Automobile Insurance Co. (Tex. Civ. App. 1969), 449 S.W.2d 93, 97-98, would not have been significant. We conclude, therefore, that the circuit court had jurisdiction to decide this case.

When a matter pending in the courts> of this State is also the subject of litigation in the Federal courts> system, questions may arise as to whether the State court has jurisdiction to render a judgment on the merits and whether such a judgment would be dispositive of the controversy. See, e.g., 28 East Jackson Enterprises, Inc. v. Rosewell (1976), 65 Ill.2d 420; 551 F.2d 1093 (7th Cir. 1977), cert. denied (1977), 434 U.S. 835, 54 L.Ed.2d 96, 98 S.Ct. 123; Vendo Co. v. Stoner (1974), 58 Ill.2d 289, cert. denied (1975), 420 U.S. 975, 43 L.Ed.2d 655, 95 S.Ct. 1398; Lektro-Vend ...


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