Rome Petroleum & Iron Co. v. Hughes Specialty Well Drilling Co.

• Decision Date: 26 May 1904
• Docket Number: 49.
• Citation: 130 F. 585
• Parties: ROME PETROLEUM & IRON CO. v. HUGHES SPECIALTY WELL DRILLING CO.
• Court: U.S. District Court — Northern District of Georgia

130 F. 585

ROME PETROLEUM & IRON CO. v. HUGHES SPECIALTY WELL DRILLING CO.

No. 49.

United States Circuit Court, N.D. Georgia, Western Division.

May 26, 1904

Dean &amp Dean, for plaintiff.

J Branham, Denny & Harris and Geo. A. H. Harris, for defendant.

NEWMAN District Judge.

This is a motion to remand. The suit was originally brought in the superior court of Floyd county, Ga., by the Rome Petroleum &amp Iron Company, a corporation of the state of South Dakota against the Hughes Specialty Well Drilling Company, a corporation of the state of South Carolina. The defendant has by proper proceedings removed the case into the Circuit Court of the United States for the Northwestern Division of the Northern District of Georgia. Neither of the parties are citizens or residents of the state of Georgia.

The question is whether under Act Cong. March 3, 1887, c. 373, 24 Stat. 552, as corrected by Act Aug. 13, 1888, c. 866, 25 Stat. 433 (U.S.Comp.St. 1901, p. 508), such a suit is removable. This depends upon the construction to be given certain clauses in the first and second sections of that act. In the beginning of the first section it is provided:

'That the Circuit Courts of the United States shall have original cognizance, concurrent with the courts of the several states, of all suits of a civil nature, at common law or in equity, where the matter in dispute exceeds, exclusive of interest and costs, the sum or value of two thousand dollars, * * * in which there shall be a controversy between citizens of different states.'

In the latter part of the first section it is provided:

'But no person shall be arrested in one district for trial in another in any civil action before a circuit or district court; and no civil suit shall be brought before either of said courts against any person by any original process or proceeding in any other district than that whereof he is an inhabitant, but where the jurisdiction is founded only on the fact that the action is between citizens of different states, suit shall be brought only in the district of the residence of either the plaintiff or the defendant.'

The second section of the act, so far as material here, provides that:

'Any other suit of a civil nature, at law or in equity, of which the Circuit Courts of the United States are given jurisdiction by the preceding section, and which are now pending, or which may hereafter be brought, in any state court, may be removed into the Circuit Court of the United States for the proper district by the defendant or defendants therein, being non-residents of that state.' Since the passage of this act, the Circuit Courts have differed as to the construction of these provisions of sections 1 and 2 of this act. Soon after the passage of the act (August 29, 1887), Mr. Justice Field and Judges Sawyer and Sabin, in the Circuit Court for the Northern District of California, rendered a decision, which has since been often quoted, in which it was held that:

'Under section 1 of the removal act, as amended by an act of March 3, 1887, c. 373, 24 Stat. 552 (U.S.Comp.St. 1901, p. 508), the Circuit Court cannot take cognizance of a suit brought against a party in a district of which he is not an inhabitant, and section 2 does not authorize the removal of a suit brought in a state court against a party not an inhabitant of the district. Section 2 of said act, as amended, does not authorize the removal of a suit from a state court to the United States Circuit Court which could not have been originally brought in said circuit court.'

In Wilson v. Western Union Telegraph Co. (C.C.) 34 F. 561, Mr. Justice Field and Circuit Judge Sawyer expressly stated that the views announced in Yuba v. Mining Co. were erroneous. In the opinion by Mr. Justice Field this is said:

'The evident object of this motion is to obtain a reconsideration of the decision of the circuit court in the case of County of Yuba v. Mining Co., rendered in August, 1887, and reported in 32 F. 183. It was there held that, under section 1 of the act of 1887, the Circuit Court could not take cognizance of an action brought against a party in a district of which he was not an inhabitant, and that, under section 2, no removal could be made to the Circuit Court of the United States of an action brought in a state court against a party who was not an inhabitant of the district. In that case the plaintiff was a county of the state of California, and the defendants were corporations of the state of Nevada. The opinion in the case was written by my associate, the Circuit Judge, but I concurred in it, and in the judgment which followed. I have, however, long been satisfied that we fell into an error, and I am happy that we have so early an opportunity of correcting it.'

Afterward, in the opinion, this occurs:

'Passing now to the second section of the act of 1887, we find the cases mentioned in which a removal of suits of a civil nature may be had from the state court to the Circuit Court of the United States. They embrace, among others, first, suits of a civil nature arising under the Constitution or laws of the United States, or treaties made, or which shall be made, under their authority, of which by the previous section of the act the Circuit Courts are given original jurisdiction, but which are pending or may be brought in a state court; and, second, other suits of a civil nature of which the Circuit Courts are given original jurisdiction by the first section, but which are pending or may be brought in a state court. These may be removed by the defendant or defendants therein being non-residents of the state. In one of these classes of suits a removal may be asked by the defendant or defendants without regard to his or their residence. In the other class a removal can be asked only when the defendant or defendants reside without the state. According to this construction of the two sections, the corporations of Nevada, defendants in the Yuba County Case, had a right to its removal to the Circuit Court of the United States, and we erred in remanding it back to the state court. So in the present case the defendant the Western Union Telegraph Company has a right to its removal to the Circuit Court, and, the removal being made, the motion to remand the case back to the state court must be denied. Since the decision in the Yuba County Case, the same question has been before several Circuit Courts, and the decisions rendered by them, after a careful consideration of the subject, have been against the one we made, and which we now overrule. See Fales v. Chicago, etc., Railroad Co. (C.C.) 32 F. 673; Gavin v. Vance (C.C.) 33 F. 84; Loomis v. Coal Co., Id. 353; St. Louis, V. & T. H. Railroad Co. v. Railroad Co., Id. 385.' In Fales v. Chicago, etc., Railroad Co., cited by Justice Field, Judge Shiras, delivering the opinion, says in this connection:

'It seems to me that the question of federal cognizance is confounded with the question of the place of bringing suit by original process. The latter question has nothing to do with the right of removal. The question whether the action might have been brought by original process in any federal court was material, in order to determine whether it was a case of federal cognizance; but, that question being decided in favor of the federal jurisdiction, the question of the proper place or district in which the suit might have been brought by original process is wholly immaterial on the question of removal.'

And again in the same opinion:

'If however, the plaintiff, having a cause of federal cognizance by reason of diverse citizenship, chooses to bring suit thereon in the state court, then he has made his election, and he cannot afterwards remove the case into the federal...