Barlow v. Chicago & N.W. Ry. Co.

• Decision Date: 09 August 1909
• Docket Number: 466.
• Citation: 172 F. 513
• Parties: BARLOW v. CHICAGO & N.W. RY. CO.
• Court: U.S. District Court — Northern District of Iowa

172 F. 513

BARLOW v. CHICAGO & N.W. RY. CO.

No. 466.

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

August 9, 1909

Charles A. Dickson, for plaintiff.

Wright Call & Sargent and James C. Davis, for defendant.

REED District Judge.

A motion by plaintiff to remand this cause to the state court for want of jurisdiction of this court was denied November 6 1908, for reasons stated in an opinion filed that day. 164 F 765. Upon publication of the opinion of Judge Pollock in Mahopoulus v. Chicago, Rock Island & Pacific Ry. Co (C.C.) 167 F. 165, in which a contrary view to that held by this court is taken of facts identical with those in this case, the plaintiff filed a petition for rehearing, relying wholly upon the opinion in the Mahopoulus Case in support of his petition. The great respect entertained for the opinions of that able and experienced judge has led to a re-examination of the grounds of the decision in this case. The facts, as stated in the former opinion, are that the plaintiff at the time the action was commenced, and when it was removed from the state court, was an alien residing in England and the defendant a corporation of Illinois, owning and operating a line of railroad in that state and into and through the county of Woodbury in this state. The suit was commenced in the district court of Iowa in and for said Woodbury county to recover damages of the defendant in excess of $2,000, exclusive of interest and costs for injuries to plaintiff's land in that county alleged to have been caused by the negligent and wrongful act of defendant in constructing its railroad embankment upon such land. Notice of the suit was served upon the defendant's agent in Woodbury county as authorized by the state statute, and in due time it filed a sufficient petition and bond in the state court for the removal of the cause to this court upon the ground that when the suit was commenced the plaintiff was a nonresident alien, and the defendant an Illinois corporation. The plaintiff promptly objected to the removal upon the ground that the controversy was one of which the Circuit Courts of the United States did not have jurisdiction and the objection was sustained by the state court. The defendant then lodged a copy of the record in this court and moved that it take jurisdiction of the cause, and the plaintiff seasonably moved to remand it to the state court, and has not invoked the action of this court upon any other question than that of its jurisdiction of the controversy.

That the Circuit Courts of the United States have only such jurisdiction as the Congress has conferred upon them, and that only such suits may be removed thereto from a state court that Congress has authorized to be removed is of course conceded, and neither of such questions need be discussed. The questions for determination then are: (1) Has a Circuit Court of the United States jurisdiction of a suit of a civil nature, in which more than $2,000 is involved, between an alien and a citizen of one of the United States? If it has, then (2) may such a suit (if brought by a nonresident alien as plaintiff in a state court against a citizen or corporation of any of the states of the Union who is not a resident of the state in which the suit is brought) be removed by the latter to the proper Circuit Court of the United States in that state?

The former of these questions is sufficiently answered by the present judiciary act of (Act March 3, 1887, c. 373, 24 Stat. 552, and Act Aug. 13, 1888, c. 866, 25 Stat. 433 (U.S. Comp. St. 1901, p. 508)) section 1 of which provides:

'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, and * * * in which there shall be a controversy, * * * between citizens of a state and foreign states citizens or subjects. * * * '

This clause of the section clearly confers original jurisdiction upon the Circuit Courts of the United States, concurrent with the courts of the several states, of the subject-matter of suits of a civil nature between aliens and citizens of the United States, in which the requisite amount is involved. Where, then, must such a suit be brought in a Circuit Court of the United States? The section of the judiciary act before mentioned further provides:

'But * * * no civil suit shall be brought before either of said courts against any person by original process, or proceeding in any other district than that whereof he is an inhabitant, but where the jurisdiction is founded only upon 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 defendant.'

In re Hohorst, 150 U.S. 653-659, 14 Sup.Ct. 221, 37 L.Ed. 1211, and again in Barrow Steamship Co. v. Kane, 170 U.S. 100-112, 18 Sup.Ct. 526, 42 L.Ed. 964, it is plainly held that the provision of the act in question requiring suits to be brought in the district o which the defendant is an inhabitant has no application to suits by a citizen of one of the states of the Union against an alien, and that such a suit may be brought originally in the Circuit Court of the United States in any district wherein valid service may be obtained upon the alien defendant, though the cause of action upon which the suit is brought may have arisen in a foreign country. If this be true, and it must be so regarded by the lower federal courts, then it must also be true that the further provision which requires that suits wherein the jurisdiction of the Circuit Courts 'is founded only upon the fact that the action is between citizens of different states shall be brought only in the district of the residence of either the plaintiff or defendant' is not applicable to suits between aliens and citizens, for by the very letter of that provision it applies only to suits between 'citizens of different states'; and suits between citizens and aliens may be brought in any district where valid service may be obtained upon the defendant, whether he be citizen or alien, subject, of course, to the right of the defendant, if he be a citizen of one of the states, to seasonably object to being sued by an alien in any other district than that of his residence, the same as he might so object if sued by a citizen in a district of which neither the plaintiff nor the defendant was a resident, and, unless he does so object, the cause may rightly proceed to determination in the Circuit Court of the United States, where it was so commenced.

Railway Company v. McBride, 141 U.S. 127, 11 Sup.Ct. 982, 35 L.Ed. 659; Shaw v. Quincy Mining Co., 145 U.S. 444-448, 12 Sup.Ct. 935, 36 L.Ed. 768; Central Trust Co. v. McGeorge, 151 U.S. 129-138, 14 Sup.Ct. 286, 38 L.Ed. 98; In re Keasbey & Mattison Co., 160 U.S. 221, 16 Sup.Ct. 273, 40 L.Ed. 402; Galveston, etc., Ry. Co. v. Gonzales, 151 U.S. 496, 14 Sup.Ct. 401, 38 L.Ed. 248.

In addition to these and other cases cited in the former opinion it was recently held by the Supreme Court in Davidson Bros. Marble Co. v. United States, 213 U.S. 10, 29 Sup.Ct. 324, 53 L.Ed. 675, that the clause requiring suits to be brought in the Circuit Courts in the district of the residence of either the plaintiff or defendant when the jurisdiction is founded only upon the fact that the action is between citizens of different states has no application to suits wherein one of the parties is not a citizen of any of the states of the Union; and the same was so held by the Court of Appeals for this circuit in United States v. Northern Pacific Ry. Co., 134 F. 715, 67 C.C.A. 269. Each of these cases was brought originally in a Circuit Court of the United States, but in a district other than that of the residence of the defendant, and the right to there maintain the same was denied, on objection of the defendant, upon the authority of Shaw v. Quincy Mining Co., above, and like cases. That this court has jurisdiction of the subject-matter of this controversy and that it might have been brought herein originally by the plaintiff, subject, of course, to the right of the defendant to seasonably object to being sued in a district other than that of his residence, is not open to question under these authorities.

May the plaintiff then prevent the...