Nash v. McNamara

• Decision Date: 07 May 1906
• Docket Number: 835.
• Parties: NASH et al. v. McNAMARA et al.
• Court: U.S. District Court — District of Nevada

145 F. 541

NASH et al. v. McNAMARA et al.

No. 835.

United States Circuit Court, D. Nevada.

May 7, 1906

Campbell Metson & Brown, James A. MacKenzie, Key Pittman, and George A. Bartlett, for plaintiffs.

William Forman, B. G. Wilson, A. R. Needles, and L. A. Gibbons, for defendant.

HAWLEY District Judge (orally).

The petition for removal in this case is on behalf of the Manhattan-Dexter Mining Company of Nevada, a corporation, and the Manhattan-Union Mining Company, a corporation. Both of said corporations were organized and existing under the laws of the state of South Dakota, and are therefore citizens and residents of said state. Many of the questions discussed by counsel are complicated in their nature and character; and it is questionable, to say the least, whether the views expressed by counsel for the plaintiffs in the court below who petitioned the state court for a removal of the case-- even if it could be hale that they should be treated as defendants-- can be sustained. The petition for removal is in many respects admitted to be defective. Taking the lengthy statement of facts prepared by the defendants which is admitted to be substantially correct, the court would perhaps be justified in disposing of the motion by simply stating that after a very thorough and careful examination of the entire record from the state court, it has grave doubts whether this court has jurisdiction to hear and determine this case.

In Kessinger v. Vannatta (C.C.) 27 F. 890, the court said:

'It is the constant practice of this court to remand causes brought here from the state courts in cases of doubtful jurisdiction. The reason of this practice is obvious and conclusive. In the first place the jurisdiction of the state court is unquestionable. It is, at least, concurrent with this court. But the jurisdiction of this court depends upon special facts, and it is in the present case, to say the least, doubtful. It is the safer and wiser course to send a cause for trial to a court of unquestionable jurisdiction, rather than retain it here, and go through all the forms of trial, when the jurisdiction is doubtful. ' Fitzgerald v. Missouri P. Ry. Co. (C.C.) 45 F. 812, 820; Hutcheson v. Bigbee (C.C.) 56 F. 329; Concord Coal Co. v. Haley (C.C.) 76 Fed 882; Johnson v. Wells Fargo & Co. (C.C.) 98 F. 3, 8; Plant v. Harrison (C.C.) 101 F. 307; McKnown v. Kansas & T. Coal Co. (C.C.) 105 F. 657; Groel v. United Electric Co. (C.C.) 132 F. 253, 265; Dodd v. Louisville B. Co. (C.C.) 130 F. 186, 198.

In Ernst v. American S. M. Co. (C.C.) 114 F. 981, the court said:

'It is a doubtful question whether or not there is a separable controversy. That being so, the proper course is to remand the case.'

But I shall not dispose of the case on this ground alone. The petition is sui generis. No case like it has ever before been presented to this court. The original suit brought by the individual plaintiffs against the defendants could not have been brought in this court because, for all that appears in the petition and record from the state court, all of the parties plaintiff and defendant were citizens and residents of the state of Nevada. The rule is well settled that a suit cannot be removed on the ground of diverse citizenship unless the requisite citizenship existed both when the suit was begun and when the petition for removal was filed. The defendants in their amended answer and cross-complaint to the original complaint alleged that the corporations-- who are petitioners for removal-- were 'and each of them is a party necessary and proper to be joined as either plaintiffs or defendants in this suit. ' After proceedings had in the state court they were brought in and claimed that they had bought the interests of the original plaintiffs, stood in their shoes, and were the sole owners of the mining ground in controversy. They filed a regular complaint against the defendants, based substantially upon the same grounds as were set forth by the original plaintiffs; and after filing their complaint and submitting themselves to the jurisdiction of the state court, they petitioned for a removal of the case to this court upon the ground of diverse citizenship, alleging that they were citizens and residents of South Dakota, and that the defendants were residents and citizens of the state of Nevada, and further averred in their petition for removal--

'That this suit is one in which there can be a final determination of the controversy between them and said defendants, without the presence of any other parties in the cause, the plaintiffs A. D. Nash, A. G. Raycraft, T. L. Oddie, and E. Sutro being now mere nominal parties whose interest, if they have any, is identical with that of your petitioners, between whom and said defendants there is now involved in this suit one sole and separable controversy.'

The right of removal exists only on behalf of a defendant. No...