Blackburn v. Blackburn

• Decision Date: 23 January 1906
• Docket Number: 1,426.
• Citation: 142 F. 901
• Parties: BLACKBURN v. BLACKBURN et al.
• Court: U.S. District Court — Eastern District of Arkansas

142 F. 901

BLACKBURN v. BLACKBURN et al.

No. 1,426.

United States Circuit Court, E.D. Arkansas, Western Division.

January 23, 1906

J. H Carmichael, for plaintiff.

Whipple & Whipple, for defendants.

TRIEBER District Judge.

The complainant filed her bill in the chancery court of Pulaski county, state of Arkansas, to remove a cloud on her title to certain real estate lying and situated in the county of Pulaski, state of Arkansas. The complainant is a citizen and resident of the state of Washington; the defendant Blackburn a citizen and resident of the state of Montana, and his codefendant, L. W. Cherry, a citizen and resident of the state of Arkansas. Both of the defendants joined in the petition for removal to this court, upon the sole ground that there is a diversity of citizenship between the parties. It is not claimed that the action is separable between the two defendants, but it is urged that, as the plaintiff is a citizen of a state other than that of either of the defendants, it is removable if either one of the defendants is a nonresident of the state in whose court the action was instituted, if both of the defendants join in the petition for removal.

The cases relied upon by complainants to sustain the removal are Dick v. Foraker, 155 U.S. 404, 15 Sup.Ct. 124, 39 L.Ed. 201, Boston Safe Deposit & Trust Co. v. Mackay (C.C.) 70 F. 801, and Hunter v. Conrad (C.C.) 85 F. 803. Dick v. Foraker has no application whatever to the case at bar, as it was originally brought in a national court. No doubt, if the complainant in the case at bar had seen proper to institute this action in this court, in view of the fact that she is a citizen of Washington and the defendants are citizens of other states, this court would have had jurisdiction, but under the act of August 13, 1888, c. 866, 25 Stat. 433 (U.S. Comp. St. 1901, p. 5081 not every suit which could originally be brought in a national court can be removed, upon the ground of a diversity of citizenship, as the second clause of section 2 of that act (25 Stat. 434 (U.S. Comp. St. 1901, p. 509)) limits the right of removal to the 'defendant or defendants therein being nonresidents of that state. ' Upon the facts as they appear from the report of the case in Dick v. Foraker, that cause would have been removable, even had it been instituted in the state court, as the defendant was a nonresident of the state of Arkansas, in which state the action was pending, and for this reason authorized to remove it upon the ground of a diversity of citizenship.

Boston Safe Deposit & Trust Co. v. Mackay, supra, apparently sustains the contention of defendants, but the opinion is anything but satisfactory to the mind of this court. As the opinion on the motion to remand is very short it may be given at full length: 'Motion denied. Garner v. Bank (C.C.) 66 F. 369. ' A reference to the only case cited will show that it has no application whatever to the facts in the case which it was cited. In that case the plaintiff, a citizen of New York, instituted an action against the defendants, both of whom were citizens of the state of Rhode Island, in one of the courts of the state of New York, and the court very properly held that the defendants being nonresidents had a right to remove the cause to a national court.

Hunter v. Conrad undoubtedly sustains the contention of defendants in part. The suit was removed from the court of the state of Rhode Island to the National court. The complainant was a citizen of New York; one of the defendants a citizen of the state of Montana, and the other defendants citizens of the state of Rhode Island. The petition to remove was filed by the nonresident defendant alone, and the court held that although there was no separable controversy, as in the case at bar, the nonresident defendant had a right to remove the cause. The opinion of the court seems to be based solely on Insurance Co. v. Champlin (C.C.) 21 F. 85, and Mitchell v. Smale, 140 U.S. 407, 11 Sup.Ct. 819, 35 L.Ed. 442. Both of these cases arose under the removal act of 1875. Under the act of 1875 either plaintiff or defendant could remove a cause from the state to the federal court if there was a diversity of citizenship between all the plaintiffs and all the defendants. There was no such restriction as is found in clause 2 of section 2 of the act of 1888 limiting the right of removal 'to the defendant or defendants being nonresidents of that state. ' Aside from these facts, in Mitchell v. Smale, the right of removal was sustained solely upon the ground that the issues involved affected a right claimed by the removing defendant to arise under the laws of the United States. The learned judge, who delivered the opinion in Hunter v. Conrad, in order to meet the objection that clause 2 of section 2 of the act of 1888 limited the right of removal to nonresident defendants solely, held that, in order to remove a cause upon the ground of diversity of citizenship, it is sufficient for one of several defendants who is a nonresident to file the petition, and thereupon the whole cause is removed, although it is not separable as between him and his codefendants who are citizens of the state in which the action was brought.

That part of the opinion has since then been expressly determined otherwise by the Supreme Court of the United States in a number of well-considered cases. Chicago, Rock Island etc., R. R. Co. v. Martin, 178 U.S. 245, 20 Sup.Ct. 854...