25 F. 737 (S.D.Ohio 1885), Fidelity Trust Co. v. Gill Car Co.

Citation:25 F. 737
Case Date:December 02, 1885
Court:United States Courts of Appeals, Court of Appeals for the Sixth Circuit

Page 737

25 F. 737 (S.D.Ohio 1885)




United States Circuit Court, S.D. Ohio.

December 2, 1885

R. H. Platt and R. C. Dale, for plaintiff.

R. A. Harrison, W. J. Gilmore, Jordan & Jordan, and Taylor & Taylor, for defendant.


This bill was filed originally in the court of common pleas of Franklin county to foreclose a mortgage. That court is the one of general jurisdiction in that county for such purposes under the laws of the state of Ohio. A demurrer was filed denying its jurisdiction, because it appeared by the bill that subsequently to the mortgage the mortgagor had made a general assignment of all his property for the benefit of his creditors; that the assignee had duly filed the assignment, given bond, and qualified as required by law in the probate court of the proper county. Pending that demurrer the cause was removed to this court by the plaintiff, where the demurrer upon the pleadings as they then stood was overruled by our Brother SAGE, and the parties were required to answer. The answer of the assignee shows that he was proceeding with all reasonable speed to administer his trust according to the requirements of the law in that behalf. The case is set down for hearing on the bill and answer.

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The jurisdiction of this court is denied, and that is the sole question involved in the case as now presented. It is not denied that this court would have had original jurisdiction to maintain the bill, for it is conceded that neither by legislation nor otherwise can a state restrict or impair the jurisdiction of the federal courts as established by the constitution and laws of the United States, whether exercised by original process or by that of removal from the state courts. But it is said that where a cause is removed from a state court, the jurisdiction of the federal court over that particular suit is in a certain limited sense a derivative jurisdiction, so that if the state court have no jurisdiction over the subject-matter or the parties the federal court can have none, although it might by some other suit originally brought or removed acquire jurisdiction over the controversy between the parties, and I have no doubt that is the law.

There is some force in the argument that when the parties stand face to face in a court of competent jurisdiction to settle the controversy, it is not of material importance to inquire how they got there, nor whether some other court in another dominion would have had the power to try the case, and that our own jurisdiction over the subject-matter is that which concerns us, and not that of the court of common pleas. There is also force in the position that congress intended, by the removal acts, as well as by the judiciary act conferring original jurisdiction over controversies between citizens of different states, to put in force in the most plenary manner the judicial power of the United States over such controversies, and to transfer them bodily at the request of either party into its own courts. But this line of argument overlooks certain essential features of every jurisprudence, and subordinates to a general principle of undoubted soundness important rights of the parties connected with the details of every litigation concerning their controversies. Not only must there be a controversy, but as well always a form of procedure of some kind, possessing all the necessary elements of a 'suit' or 'case' in court, the most important of which is, no doubt, that there shall be a tribunal authorized to issue that indispensable notice which we call a writ or process, to bring the parties together in the court; and this must be not only sufficient in form and in fact, but in legal and technical effect, to constitute a 'suit' or 'case,' which can only be when the tribunal undertaking the initiatory steps is duly authorized to do that thing and proceed with the matter of adjudging between the parties, either for itself or by transferring that function to some other tribunal, likewise duly authorized to proceed to judgment. Whatever may be said as to the proper definition of the term 'suit' or 'case' in other respects, in this process of inaugurating the procedure by which the controversy is to be judicially determined there must be, ex necessitate rei, a court having power to set in motion the machinery of the law, and this we call its jurisdiction over the subject-matter; while that effectual service of its notice which is legally potential to

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bring the parties before itself, or whatever proper tribunal may proceed further in the progress of the 'case,' we call its jurisdiction over the parties. Both must at some time concur to establish a lawfully constituted 'suit' by which the controversy is to be adjudged, either in the court issuing the process or in any tribunal to which it may be removed for judgment. The act of congress does not provide for the removal of the controversy alone, and this separate and apart from the suit, but only 'any suit of a civil nature, at law or in equity, now pending, or hereafter to be brought, in any state court, * * * in which there shall be a controversy between citizens of different states,' etc. Act March 3, 1875, Sec. 2, (18 St. 470.)

Now, if a citizen of Pennsylvania, holding a promissory note made by a citizen of Ohio, on which he desired to bring suit, should go into a state court of exclusive criminal jurisdiction, file his complaint, sue out his writ of summons, have it served in the usual way, and then remove the controversy into this court, could it be pretended that we should retain the jurisdiction on the grounds urged here? I think not. All the forms of a suit would exist in appearance; a court, process executed, and pleadings adapted to the purpose, but there would be no 'suit' in court any more than if the proceeding had been commenced in a moot court, such as are organized in law-schools to teach practice. I do not mean to say that we measure our jurisdiction wholly by that of the state court, and that nothing can be adjudged here which could not have been adjudged there; for cases can be well imagined where this ruling should be subject to qualification, but not in its essential requirements. It may be that over the controversy embodied in the suit we should have here a fuller power of judgment than was possessed by the state court; or, on the other hand, that court may have had a more enlarged power than has been given to us; and it may be that we should, as the case required, extend or restrict our adjudication, as by our own rule of judgment we should be compelled to do; but, still, the fundamental principle would co-exist with that state of circumstances, and we should have 'a suit' pending in the state court in some other sense than that of mere form, and which could be removed here in some other sense than that of having a controversy over which our own jurisdiction was plenary, although the state court could have had none at all. The opinion I wish to express is confined to this: that wherever there is a total absence of jurisdiction over the subject-matter in the state court, so that it had no power to entertain the suit in which the controversy was sought to be litigated in its then existing or any other form, there can be no jurisdiction in the federal court to entertain it on removal, although in some other form it would have plenary jurisdiction over the case made between the parties. This is not a mere technical necessity of the situation, but a matter of substantial right, which demands that before a defendant can be required to submit his case to any court the legal methods of procedure appointed by law

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must be pursued in constructing 'the suit,' which is made the vehicle for bringing the controversy into court. The plaintiff cannot bring the defendant into court in any way that suits his convenience or his whim, but must do it in the manner pointed out by law. If he choose to take action in a state court, and then remove the suit here, the plaintiff should have a care that the state court has the necessary jurisdiction to furnish the stock on which to graft our proceedings, whatever may be the outcome of a difference in the two jurisdictions.

The case of Kelly v. Virginia Ins. Co., 3 Hughes, 449, does not establish a contrary doctrine, however broad its expressions may be. There the question was one of mere...

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