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

• Decision Date: 06 November 1908
• Docket Number: 466.
• Citation: 164 F. 765
• Parties: BARLOW v. CHICAGO & N.W. RY. CO.
• Court: U.S. District Court — Northern District of Iowa

164 F. 765

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

No. 466.

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

November 6, 1908

Charles A. Dickson, for the motion.

Wright Call & Sargent and James C. Davis, opposed.

REED District Judge.

The plaintiff, a nonresident alien, commenced this action in the district court of Iowa in and for Woodbury county to recover of the defendant railway company, an Illinois corporation damages in excess of $2,000, for injuries to certain lands in said Woodbury county owned by the plaintiff, alleged to have been caused by the failure of defendant to construct adequate or proper bridges and culverts in its embankment and roadbed over and across said land to permit the natural flow of water courses and surface waters over the same, and thereby caused the land to be overflowed and flooded in times of high water to plaintiff's damage in the sum alleged, for which he asks judgment against the defendant railway company. The defendant seasonably filed in the state court its petition and bond in due form, with sufficient sureties, for the removal of the cause to this court upon the ground that at the time the action was commenced the plaintiff was, and ever since has been, an alien, viz., a citizen and subject of the kingdom of Great Britain and Ireland residing in England, and the defendant a railway corporation organized and existing under the laws of Illinois and never incorporated under the laws of Iowa. The state court refused to grant the petition for removal. The defendant thereupon filed a copy of the record in this court, and asks that it take jurisdiction of the cause, and the plaintiff moves to remand upon the alleged ground that this court is without jurisdiction thereof.

It is earnestly contended in support of the motion to remand that, as neither the plaintiff nor the defendant was a citizen or resident of Iowa and of this district when the action was commenced, it could not rightly have been brought by original process in this court, and is not therefore one that is removable from the state court. It is admitted by counsel for the plaintiff that this contention is opposed to the holding of this court in Iowa Lillooet Gold Mining Co. v. Bliss et al., 144 F. 446; but it is urged, with much confidence apparently, that that holding is contrary to Ex parte Wisner, 203 U.S. 449, 27 Sup.Ct. 150, 51 L.Ed. 264, and for that reason should be overruled. In this contention counsel ignores the difference in the citizenship of the parties in Ex parte Wisner, and that of the parties in the Lillooet Case. In Ex parte Wisner the jurisdiction of the Circuit Court is founded alone upon the fact that the action was between citizens of different states, in which case the act of 1887-88 (Act March 3, 1887, c. 373, Sec. 1, 24 Stat. 552 (U.S. Comp. St. 1901, p. 508)) expressly provides that 'suit shall be brought by original process only in the district of the residence of either the plaintiff or the defendant'; and there is language in the opinion indicating that it was intended to hold that the place where the suit is so required to be brought is jurisdictional, and may not be waived by both parties to the suit.

In the Iowa Lillooet Case the plaintiff was a Canadian corporation having an office and place of business in Iowa, the defendant Bliss a citizen of Iowa residing in this district, and the defendant United States Fidelity & Guaranty Company a Maryland corporation doing business in Iowa. The action was brought originally in a state court of Iowa, and removed by the defendant guaranty company to this court, upon the ground that it was a corporation of Maryland and the plaintiff a Canadian corporation, between whom there was a separable controversy to the full and complete determination of which the defendant Bliss was not a necessary, or even proper, party, and that he was fraudulently joined as defendant with the guaranty company to prevent it from removing the cause to this court. The plaintiff objected to the removal, and moved to remand, upon two grounds: (1) That there was no separable controversy between it and the guaranty company; and (2) that the action could not have been brought originally in this court, and was not therefore one that was removable from the state court. Upon the latter question it is said in the course of the opinion:

'The motion to remand challenges the jurisdiction of this court, and in support thereof it is urged that, plaintiff being a corporation of Canada, and defendant a corporation of Maryland, neither being a citizen or resident of Iowa, the action could not have been brought by original process in this court, and is not therefore one that is removable from the state court. This contention fails to distinguish between the jurisdiction or right of a court to determine a controversy, and the venue or place where that jurisdiction may be exercised. The first part of section 1 of the judiciary act of 1887-88 confers jurisdiction upon the Circuit Courts of the United States, concurrent with the courts of the several states, of all suits of a civil nature, at law or in equity, wherein the requisite amount is involved, and in which there shall be a controversy between, * * * (3) citizens of different states, and * * * (5) citizens of a state and foreign states, citizens or subjects. The second part of that section provides that no civil suit shall be brought against any person in a circuit court of the United States by original process in any other district than that whereof he is an inhabitant; but 'when 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 the defendant.' This suit is not of the class there described, for plaintiff is a corporation of Canada, defendant Bliss a citizen and resident of the Northern District of Iowa, and the guaranty company a corporation of Maryland. If it is one of which this court has jurisdiction, it might therefore have been brought in this court by original process against defendant Bliss, and if the guaranty company is jointly liable with him on its bond, against that company also, especially if it did not object to being sued there, and is removable to this court if it is within the terms of the removal section.'

It is clear from this excerpt from the opinion that, in determining the question thus presented, suits between citizens of different states were carefully distinguished from those between aliens and citizens. It may be conceded that in the further course of the opinion there is language which considered apart from the facts actually presented for determination, might indicate that it was intended to apply also to suits between citizens of different states, and it is quite probable that at that time the holding in such a suit would have been the same as in one between an alien and a nonresident citizen, in view of the prior decisions of the Supreme Court, and the opinion of Mr. Justice Brewer, then Circuit Judge of this circuit, in Kansas City T. & Ry. Co. v. Interstate Lumber Co., 37 F. 3, and of Mr. Justice Gray in Amsinck v. Balderston, 41 F. 641, and many other cases in the circuit courts. But if it had been so held in a suit between citizens of different states, where the plaintiff had timely objected to the removal, it would have been error under the later holding in Ex parte Wisner, as that case is interpreted in Re Moore, 209 U.S. 490, 28 Sup.Ct. 585, 706, 52...