SCHARFF & ANOTHER
v.
LEVY & ANOTHER
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A case was removed from Missouri state court to federal court after the plaintiff's complaint was challenged by a general demurrer on the ground that it failed to state a cause of action. The Supreme Court affirmed the order remanding the case back to state court, holding that federal jurisdiction cannot be invoked under the removal statute after a state court has held a hearing on a demurrer to the complaint, regardless of whether state law permits subsequent amendment or pleading as a matter of course. The Court established that a general demurrer raises an issue of law on the merits that is tried and finally disposed of, making removal improper at that procedural stage.
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Mr. Chief Justice Waite delivered the opinion of the court.
The order remanding this cause to the State court from which it was removed is affirmed on the authority of Alley v. Nott, 111 U. S. 472, where it was decided that a case could not he removed from a State court under the act of March 3, 1875, ch. 137, 18 Stat. 470, after a hearing on a demurrer to a complaint because it did not state facts sufficient to constitute a cause of action. To that decision we adhere. The Code of Civil Procedure of New York, from which State that cause came, provided that the court might, in its discretion, allow the party in fault to plead over or amend after the decision against him on a demurrer. In Missouri, from which State this case comes, § 3518 of the Revised Statutes, 1879, provides that a plaintiff may amend, of course, with or without costs, as the court may order. But in Missouri, as in New York, a general demurrer to a petition or complaint raises an issue of law, which when tried, will finally dispose of the case unless the plaintiff amends or the defendant answers, as may be required. “ If final judgment is entered on the demurrer, it will be a final determination of the rights of the parties, which can be pleaded in bar of another suit for the same cause of action.” An issue of law involving the merits of the action is as much tried on the hearing of a demurrer in Missouri as it is in New York.' The fact that in Missouri an amendment may be made or a plea filed as a matter of course does not affect the principle on which the right of removal depends.
The demurrer in the present case is not set out in full in the record, but it is conceded, in the brief of counsel for the plaintiffs in error, that it was “ on the ground that the facts stated did not constitute a cause of action,” and that would have been a fair inference from the entry, “ demurrer filed,” if the admission had not been made. Affirmed.
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Citator
Cited By
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Fisk v. Henarie, 142 U.S. 459 (U.S. 1892)
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Rothner v. City OF Chicago, 879 F.2d 1402 (7th Cir. 1989)…the Court held that because a ruling on a demurrer can result in a final judgment it is considered a trial on the merits and, thus, the filing of a demurrer in state court renders a subsequent petition for removal untimely. See also Scharff v. Levy, 112 U.S. 711, 5 S.Ct. 360, 28 L.Ed. 825 (1884) and Laidly v. Huntington, 121 U.S. 179, 7 S.Ct. 855, 30 L.Ed. 883 (1887) (both holding that a demurrer in state court cuts off the time for removal under the 1875 Act). And in Gregory v. Hartley, 113 U.S. 742, 5 S.C…
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Gregory & Others v. Hartley & Another, 113 U.S. 742 (U.S. 1885)…Co. v. Speck, ante, 87. It has also been decided that there cannot be a removal after a' hearing on a demurrer to a complaint because it does not state facts sufficient to constitute a cause of action. Alley v. Nott, 111 U. S. 412; Scharff v. Levy, 112 U. S. 711. Either one of these rules is fatal to the present' case. If we treat the suit as originally one to enforce the liens of Hartley and Tingley upon the property as security for the payment of the .amounts due them respectively, it was begun when their…
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- Alley v. Nott, 111 U.S. 472 (U.S. 1884)