Kentucky Coal Lands Co. v. Mineral Development Co.

• Decision Date: 25 September 1911
• Docket Number: 699,700.
• Parties: KENTUCKY COAL LANDS CO. v. MINERAL DEVELOPMENT CO. (two cases).
• Court: U.S. District Court — Eastern District of Kentucky

191 F. 899

KENTUCKY COAL LANDS CO. v. MINERAL DEVELOPMENT CO. (two cases).

Nos. 699, 700.

United States Circuit Court, E.D. Kentucky.

September 25, 1911

R. D Silliman, Choate & Larocque, Jos. C. Jones, and T. L. Edelen for plaintiff.

D. D Fields & Son, Dishman & Dishman, and Worthington & Cochran for defendant.

COCHRAN District Judge.

These two causes are before me on motions to remand. They are both civil suits at law, and the parties to each are the same. They were originally brought in the Letcher circuit court, and have been removed here from thence. One is in ejectment to recover possession of two tracts of land in Letcher county and $2,000 damages for the wrongful detention of same. The other is in trespass, and is to recover $15,000 damages for wrongfully entering on those tracts and cutting down timber growing thereon, removing it therefrom, and converting it to the defendnat's own use. The plaintiff is a New York corporation, and the defendant a Virginia corporation, doing business in this state. The latter has an agent in the state appointed under the laws thereof to receive service of process. At the time of the filing of the petition and bond for removal service of process on such agent had been duly had in both suits.

The ground of the motion to remand is that this court is without jurisdiction to hear and determine the suits; i.e., that they were not removable causes. And this position is based upon the subordinate one that they could not have been originally brought in this court. That a civil suit is not removable from a state court to a Circuit Court of the United States, unless it could in the first instance have been brought in the latter, is well settled. Ex parte Wisner, 203 U.S. 449, 27 Sup.Ct. 150, 51 L.Ed. 264. The removability of the suits in hand depends, then, on the question whether they could have been originally brought here. That is the sole question which is now up for consideration and determination.

Counsel for plaintiff practically assume that this question hangs on the question, subordinate thereto, whether the suits are covered by section 8 of the jurisdictional act of March 3, 1875. They will not have it that it is possible for such jurisdiction to exist by virtue of the jurisdictional act of 1887-88, the main act conferring jurisdiction on the Circuit Courts of the United States.

It is thought that that statutory provision is removed from consideration by the fact that it is expressly provided therein that where the jurisdiction is founded only on the fact that the action is between citizens of different states, as is the case here, suit shall be brought only in the district of the residence of either the plaintiff or defendant. This is not the district of the residence of either plaintiff or defendant; the one being a New York corporation and the other a Virginia corporation. That it is not the district of the residence of the defendant, even though it does business therein and has an agent on whom process can be served, has been decided by the Supreme Court in the case of Shaw v. Quincy Mining Co., 145 U.S. 444, 12 Sup.Ct. 935, 36 L.Ed. 768.

As to section 8 of the earlier jurisdictional act, to which the later one purports to be an amendment, their claim is that these suits are not covered thereby. The suits which it covers are suits 'to enforce any legal or equitable lien upon or claim to or to remove any incumbrance or lien or cloud upon the title to real or personal property within the district where they are brought. ' The only possible ground upon which it can be claimed that this statutory provision covers suits, such as these in hand are, is that they are brought to enforce a legal claim to real property within this district. It is urged that it is not possible to claim that the suit to recover damages for the cutting down and removal of the timber or so much of the other suit as seeks to recover damages for the wrongful detention of the real property whose possession is sought to be recovered are brought for any such purpose, and hence come within that provision. As to so much thereof as seeks to recover such possession, it is claimed that, in so far, the suit is in personam, just as much so as it is, in so far as it seeks to recover damages for the wrongful detention, and that provision covers no suit in personam, but is limited to suits that are in rem or quasi in rem. Indeed, it is urged that the section, inasmuch as it provides for bringing the defendant before the court by substituted service of process outside of the district, and, if not to be had, by publication, could not constitutionally have been made to cover any suit in personam, not even one in ejectment. In support of the position that section 8 does not cover a suit in ejectment, the decision of the Court of Appeals of the District of Columbia in the case of Staffan v. Zeust, 10 App.D.C. 260, that a substantially similar statute, applicable to the District of Columbia alone, providing for substituted service of process and publication, did not cover a suit in ejectment is much relied on. The recent decisions of the Supreme Court in the case of Ladew v. Tennessee Copper Co., 218 U.S. 357, 31 Sup.Ct. 81, 54 L.Ed. 1069, and Wetmore v. Tennessee Copper Co., 218 U.S. 369, 31 Sup.Ct. 84, 54 L.Ed. 1073, are relied on generally as upholding the position that these suits could not originally have been brought in this court. It is conceded that Judge Phillips in the case of Spencer v. Kansas City Stockyards Co. (C.C.) 56 F. 745, and that Judge McDowell in the case of Elk Garden Co. v. T. W. Thayer Co. (C.C.) 179 F. 556, each have held that a suit in ejectment can be brought in the Circuit Court of the United States for the district within which the land lies, even though such district is not the residence of either plaintiff or defendant.

But it is contended that the principal point upon which reliance is had here, to wit, that a suit in ejectment is in personam, and hence not covered by section 8 of the act of March 3, 1875, was not presented in either case, that they are erroneous, and that they have in effect been overruled by the decisions of the Supreme Court in the Ladew and Wetmore Cases. Such I believe to be a fair presentation of plaintiff's position on these motions.

I can say at the outset that, if the right to bring these suits originally in this court depended on section 8 of that act, they could not have been brought here. That section has nothing to do with the right to bring suits in the Circuit Courts of the United States. It has to do with making it so that suits to enforce certain kinds of causes of action, rightfully brought there, may be prosecuted to a hearing and determination.

The jurisdiction of any court of original jurisdiction to hear and determine a suit brought in it depends upon two things. One of these two things is that the plaintiff must have had the right to bring the suit there. The other is that he must have had the right to prosecute it to a hearing and determination after it was brought there. The right to so prosecute it does not follow necessarily from the right to bring the suit in the court. These two things from the standpoint of the court may be put thus. The court must have jurisdiction of the cause of action sought to be enforced in the suit. And it must have jurisdiction of the person of the defendant, either by service of process on him within the territorial jurisdiction of the court, or by his entering his appearance, or, in case such service of process cannot be had because of his absence from such territorial jurisdiction, and the cause of action concerns property located therein, it must have jurisdiction as to such property, either by service of process outside of such territorial jurisdiction, or by constructive service by publication or warning order. Unless the court has jurisdiction of the cause of action sought to be enforced, the plaintiff has no right to bring the suit there. And unless it has acquired jurisdiction of the person of the defendant or of his property, as the case may be, he has no right to prosecute the suit to a hearing and determination after he has brought it there, notwithstanding he had a right to bring it there. Jurisdiction of the cause of action sought to be enforced in the suit or the right to bring the suit in the court consists of two elements. The character thereof must be of the kind, jurisdiction of which or the right to bring suit to enforce which in the court is conferred by the statute. This is what has been termed 'essential jurisdiction.' It cannot be enlarged by consent of the parties. The other element is that the court must be that one of the several co-ordinate courts differing only in the territory covered by them-- i.e., in their territorial jurisdiction-- where the suit to enforce the cause of action is required or permitted to be brought. In other words, the suit must be laid in the proper venue.

This element is not essential to jurisdiction. It exists only for the benefit of the defendant, and can be waived by him. If the suit is of such a nature that it can be brought in another of such co-ordinate courts than the one in which it is permitted to be brought, and is so brought, the court where it is brought has jurisdiction of the cause of action notwithstanding the suit is improperly brought there if the defendant consent to its remaining there. What has been thus said of courts of original jurisdiction generally is true of the Circuit Courts of the United States. In order that any one of those courts may have jurisdiction to hear and determine a suit brought there, it is essential that the plaintiff had the right to bring the suit there; i.e., that the cause of action thereby sought to be...