Bogue v. Chicago, B. & Q.R. Co.

• Decision Date: 29 February 1912
• Citation: 193 F. 728
• Parties: BOGUE v. CHICAGO, B. & Q.R. CO. RICHEY v. ATCHISON, T. & S.F. RY. CO.
• Court: U.S. District Court — Southern District of Iowa

193 F. 728

BOGUE v. CHICAGO, B. & Q.R. CO.

RICHEY v. ATCHISON, T. & S.F. RY. CO.

United States District Court, S.D. Iowa.

February 29, 1912

S. V Reynolds and McCoy & McCoy, for plaintiff Bogue.

Burrell & Devitt, McNett & McNett, and W. D. Eaton, for defendant Chicago, B. & Q.R. Co.

Felix T. Hughes, for plaintiff Richey.

Thomas R. Morrow, James P. Gilmore, John H. Lathrop, and Hazen I Sawyer, for defendant Atchison, T. & S.F. Ry. Co.

SMITH McPHERSON, District Judge.

Each of these cases presents the question as to whether it is removable from a state court to this court. Each case is one of a civil nature, with the requisite jurisdictional amount involved, and each presents a controversy between citizens of different states. But, does either defendant, because of the residence of the parties, have the right of removal?

The facts are: Bogue, the one plaintiff, is a citizen and resident of Nebraska. The defendant Chicago, Burlington &amp Quincy Railroad Company is a corporation organized under the laws of Illinois, with general offices in that state, and with its line of road across Illinois, Iowa, Nebraska, and other states. The cause of action, an alleged wrongful act resulting in death, occurred in Iowa. The action was brought in the Mahaska county district court. Richey, the other plaintiff, is a citizen and resident of Missouri. He brought this action in the district court of Lee county Iowa, for an alleged wrongful act in Missouri, resulting in his injury. The defendant Atchison, Topeka & Santa Fe Railway Company is a corporation organized under the laws of the state of Kansas, with general offices in that state, and with a line of road across Illinois, Iowa, Missouri, Kansas, and other states. Each of the cases was brought, and the removal proceedings filed, during the year 1911, so I conclude that the Judicial Code effective January 1, 1912, is not controlling. However, that is not important, as the right of removal is not changed, other than the jurisdictional amount, and the procedure. And neither the amount nor the procedure in these cases affects the question now for decision. These attempted removals are based only on diversity of citizenship, under sections 1 and 2 of the judiciary act of March 3, 1875, as amended in 1887 and corrected in 1888. It is provided by that statute:

'Sec. 1. That the Circuit Courts of the United States shall have original cognizance * * * and arising under * * * in which there shall be a controversy between citizens of different states. * * *

'But where the jurisdiction is founded only on 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.

'Sec. 2. * * * Any other suit * * * of which the Circuit Courts of the United States are given jurisdiction by the preceding section * * * may be removed into the Circuit Court of the United States for the proper district by the defendant or defendants therein, being nonresidents of that state.

'And when in any suit mentioned in this section there shall be a controversy which is wholly between citizens of different states, and which can be fully determined as between them, then either one or more of the defendants actually interested in such controversy may remove said suit into the Circuit Court of the United States for the proper district.'

Under section 1, could Bogue, a citizen and resident of Nebraska, have brought his action in this court by original proceedings against the Burlington Company, an Illinois corporation, but with a line of road through this district? And could Richey, a citizen and resident of Missouri, have brought his action in this court by original proceedings against the Santa Fe Company, a Kansas corporation, but with a line of road through this district?

In so far as I can learn by personal research and from briefs of diligent counsel, this question has not been considered by the Supreme Court. Nor has it been determined by written opinion by any court on the circuit. This statement is challenged by the citation of In re Wisner, 203 U.S. 449, 27 Sup.Ct. 150, 51 L.Ed. 264. Until the opinion in that case was filed, many lawyers and judges were of the belief that when a plaintiff, either resident or nonresident, brought a personal action in any court, he surrendered himself, not only to that court, but to all other courts to which his case could be carried under any law by change of venue, by appeal, by writ of error, by certiorari, or by any other proceeding for removal. Not only so, but in an action brought by a nonresident plaintiff the defendant could in such case file a set-off, cross-demand, counterclaim, or cross-bill, and thereby acquire jurisdiction over a nonresident plaintiff. But such belief was a mistaken one as to proceedings for a removal from a state to a United States court.

There are but two things to be said as to the Wisner Case, and, when said, it cannot longer be urged as an authority in the cases now before this court: (1) Much of the opinion is unsound dictum. In re Moore, 209 U.S. 490, 28 Sup.Ct. 585, 706, 52 L.Ed. 904, 14 Ann.Cas. 1164. (2) Both parties to the action In re Wisner were individuals. Wisner, the plaintiff, was a citizen and resident of Michigan. Defendant Beardsley was a citizen and resident of Louisiana. The action was brought in a Missouri state court. By reason of garnishment proceedings Beardsley entered his appearance. The defendant, by filing his removal papers, waived the question as to the district. But it was held that the plaintiff by bringing his action, and doing no other thing, had not waived. Such is the Wisner Case. It is not an authority on the question now before this court. Nor is either of the cases Shaw v. Quincy Mining Co., 145 U.S. 444, 12 Sup.Ct. 935, 36 L.Ed. 768, or In re Keasbey, 160 U.S. 221, 16 Sup.Ct. 273, 40 L.Ed. 402, in point. In the first of those cases all of the property of the corporation, to work which it was incorporated, was in Michigan. It had only an agency in New York where it was sued. And the Keasbey Case depended on like facts.

In each of the two cases at bar personal service was made on a station or ticket agent. In the absence of an appearance and answer, default would have been entered and personal judgments rendered. And why? The railroads are within the state. When constructed, for physical reasons they cannot be removed. And a railroad charter, whether by reason of a special statutory charter, or whether created under general laws, a contract with the state is thereby entered into requiring the road to be operated in perpetuity. It is in the state to forever remain. It cannot leave. Does or can any one doubt the validity of statutes authorizing personal judgments against a railway company within the state by reason of express statutory consent, agreed to by the railway company organized under the laws of another state?

Plaintiffs' counsel, both in oral argument and by brief are utterly mistaken as to the effect of the statute prescribing a place of bringing an action. The statute is in no sense jurisdictional. The plaintiff has the legal right to bring his action in any district in the United States other than where both are citizens of the same state. And there, in the event of lawful service, the case will go to a valid judgment, unless the defendant timely objects to plaintiff maintaining the case in a district other than where either the one or other party resides. It is a mere privilege that the defendant can waive or timely protest against. It is not jurisdictional.

Section 3447, par. 3, of the Iowa Code, provides that an action for tort, such as pleaded in these cases, is barred by limitation in two years from the time action accrues. Section 3451 of the Iowa Code recites:

'The time during which a defendant is a nonresident of the state shall not be included in computing any of the periods of limitation above described.'

The Iowa Supreme Court has decided that residence, and not citizenship, was what was contemplated by that statute. Savage v. Scott, 45 Iowa, 130. And that court also has decided that a foreign corporation like a railway company, with a line of road within the state, may take advantage of the limitation of two years under section 3447. Wall v. Chicago & North Western R.R., 69 Iowa, 498, 29 N.W. 427.

The question was considered by Judge Love, sitting in this district, in case of McCabe v. Illinois Central Railroad Company, 13 F. 827, 4 McCrary, 492. In that case the defendant was an Illinois corporation with its line of road extending into this state. The opinion is exhaustive. The authorities cited are numerous, including a number by the Supreme Court of the United States. The writer of that opinion was a very able jurist, as all who knew him well know. And he follows that ruling as to a residence in a county in 4 McCrary, 566, 14 F. 323, in case of Guinn v. Iowa Central Ry. In Shainwald v. Davids et al. (D.C.) 69 F. 704, a bill in equity was entertained against an insurance company organized in another state, but doing business in the state...