Baxter, Straw & Storrs Const. Co. v. Hammond Mfg. Co.

Citation154 F. 992
Decision Date03 June 1907
Docket Number14,172.
CourtU.S. District Court — Northern District of California
PartiesBAXTER, STRAW & STORRS CONST. CO. v. HAMMOND MFG. CO. et al.

L. N Peter and Solinsky & Wehe, for plaintiff.

L. T Hatfield and J. S. S.pilman, for defendants.

VAN FLEET, District Judge.

This is a motion to remand the cause to the state court for want of jurisdiction here. The action was commenced in the superior court of the state of California for the county of Plumas and thereafter, in due time, removed to this court at the instance of the defendants, upon the asserted ground of diversity of citizenship of the parties; the petition for removal, united in by all the defendants, setting up that the plaintiff is a corporation organized and existing under the laws of the state of Utah, that the defendant corporation is one organized and existing under the laws of the state of Oregon, while of the three other defendants, two, Hammond and Frazer, were, at the commencement of the action, and still are, citizens of the state of Oregon, and the third, Powell a citizen of the state of Illinois. The motion to remand was based upon the sole ground that the defendant Frazer, a necessary party to the action, was, at the commencement thereof, a citizen of and resident within the state of California. The motion was heard upon affidavits and oral evidence adduced at the hearing, and from the showing made the question of the challenged residence resolved itself largely into a controverted question of fact.

For the reasons hereinafter stated, it is not now material to discuss the evidence further than to say that, having in view only the objection urged, I had, upon consideration, reached the conclusion that the evidence was sufficient to show that the defendant Frazer had acquired a bona fide residence in Oregon at the date of the commencement of the action, and that therefore the motion to remand should be denied, and I was prepared to so hold. Before the announcement of my conclusion, however, my attention was called, through the briefs in another case, to the recent decision of the Supreme Court of the United States in Ex parte Wisner (decided December 10, 1906), 203 U.S. 449, 27 Sup.Ct. 150, 51 L.Ed 264, which would seem to require a remand of the cause for want of jurisdiction in this court, upon another and different ground than that raised by the motion, but nevertheless appearing upon the face of the record; that is by reason of the very fact relied upon by the defendants as the basis of their right of removal to this court, that the parties to the action, plaintiff and defendants alike, were at the commencement thereof all nonresidents of the state of California and of this district. In that case, Wisner, a citizen of Michigan, commenced an action at law in the state court of Missouri, against Beardsley, a citizen of Louisiana. The latter appeared and had the cause removed to the Circuit Court of the United States for the proper district of Missouri, on the ground, as in the case at bar, of diversity of citizenship. The plaintiff, Wisner, moved to remand for want of jurisdiction in the Circuit Court, because of the fact that neither the plaintiff nor the defendant was a resident of the state of Missouri where the action was commenced; and that by reason thereof the cause was not within the original jurisdiction of the Circuit Court under the judiciary act, and hence it could not acquire such jurisdiction by removal. The motion to remand was denied, and thereupon Wisner sued out a writ of mandate before the Supreme Court to require such remand. The writ was allowed; the Supreme Court holding that under Act March 3, 1875, c. 137, Sec. 1, 18 Stat. 470, as amended by Act March 3, 1887, c. 373, Sec. 1, 24 Stat. 552, corrected by Act August 13, 1888, c. 866, Sec. 1, 25 Stat. 433 (U.S. Comp. St. 1901, p. 508), as that statute has been construed by that court, a Circuit Court of the United States has no jurisdiction, by reason of diversity of citizenship, of an action commenced in the court of a state of which neither the plaintiff nor the defendant is a resident at the time of the commencement thereof, and that such an action removed into the Circuit Court must be remanded to the court from whence it came. That, in other words, the facts as to the residence as they existed in that case, and as shown to exist in this, do not constitute a 'diversity of citizenship' under the act of 1887, such as to confer jurisdiction on the Circuit Court.

The reasoning of the court is, in brief, that inasmuch as the jurisdiction of the Circuit Courts is not, like that of the Supreme Court, derived immediately from the Constitution, but depends for its scope entirely upon acts of Congress, no intendments may be indulged in any instance in favor of its extension beyond the limitations of the act defining it. That, in this respect, these courts are creatures of the statute, and the latter alone is the measure of their jurisdiction. That the purpose and effect of the act of 1887 was to contract, and not enlarge, the jurisdiction of these courts as theretofore existing; that the provisions of the judiciary act of 1789, allowing a party...

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3 cases
  • Nickels v. Pullman Co.
    • United States
    • U.S. Court of Appeals — Fourth Circuit
    • August 7, 1920
    ...(D.C.) 195 F. 832; Odhner v. Northern Pac. Co. (C.C.) 188 F. 507; Shawnee Bank v. Missouri etc. R. co. (C.C.) 175 F. 456; Baxter etc. v. Hammond Co. (C.C.) 154 F. 992; Southern Pac. Co. v. Burch, 152 F. 168, 82 34; Goldberg v. German Ins. Co. (C.C.) 152 F. 831, 834; Yellow Aster Co. v. Cran......
  • Proctor Coal Co. v. U.S. Fidelity & Guaranty Co.
    • United States
    • U.S. District Court — Northern District of Georgia
    • December 23, 1907
    ... ... Smith, ... Hammond & Smith, for defendant ... NEWMAN, ... District of California in Baxter v. Hammond Mfg. Co ... (C.C.) 154 F. 992. He ... ...
  • Koike v. Atchison, T. & S.F. Ry. Co.
    • United States
    • U.S. District Court — Northern District of California
    • December 2, 1907
    ... ... it is called to its attention. Baxter, etc., Con. Co. v ... Hammond Mfg. Co. (C.C.) ... states. ' Const. U.S. art. 3, Sec. 2; Act March 3, 1875, ... c ... ...

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