Brisenden v. Chamberlain

• Citation: 53 F. 307
• Court: U.S. District Court — District of South Carolina
• Decision Date: 28 December 1892
• Parties: BRISENDEN v. CHAMBERLAIN.

53 F. 307

BRISENDEN v. CHAMBERLAIN.

United States Circuit Court, D. South Carolina.

December 28, 1892

Melton & Melton, for the motion.

Brawley & Barnwall, opposed.

SIMONTON District Judge.

This is an action at law, originally brought in the court of common pleas of the state of South Carolina sitting in Aiken county. The cause of action was the killing of plaintiff's intestate upon the track of the railway of which the defendant is the receiver. The action was brought under the provisions of section 2183, Gen. St. S.C., enacting for that state what is commonly known as 'Lord Campbell's Act.' The defendant, on the last day provided by the Code of South Carolina of the period within which he was required to answer or demur to the complaint, filed his petition for removal into this court, accompanied by a proper bond. On the same day he filed his answer. In point of fact the petition preceded the answer, but, as both were filed on the same day, this is of no consequence. The state court heard the petition. No objection was made to its form or to the sufficiency of the bond. The prayer of the petition was refused on two grounds: First, because the action was not at common law, but under a statute; and second, because the railway company of which the defendant is receiver, and which he represented, was a citizen of the state of South Carolina, of which state plaintiff was also a citizen. A transcript of the record was filed in this court and the cause removed. Steamship Co. v. Tugman, 106 U.S. 118, 1 S.Ct. 58.

A motion to remand is now made on the grounds taken in the state court and two others: (1) That the action, being under a statute, and not at common law, is not within the jurisdiction of this court; (2) that the real defendant is the South Carolina Railway Company, a citizen of the same state as the plaintiff; (3) that D. H. Chamberlain, the receiver, is resident of the district of South Carolina, and so not entitled to remove the cause; (4) that, the petition having been filed on the same day with the answer, the defendant has submitted to the jurisdiction of the state court, and cannot remove his cause.

The first ground may be thus stated: The second section of the act of 1887-88 permits the removal of a suit of a civil nature at law or in equity only when original jurisdiction has been given to the circuit court of the United States of such suit by the first section of that act. This first section declares: '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 equity,' etc. This suit, being a suit at law under Lord Campbell's Act, is not a suit at common law, but under a statute. What is meant by the phrase 'suits of a civil nature at common law? ' The constitution of the United States (article 3, Sec. 2) Extends the judicial power 'to all cases in law or equity, * * * to controversies * * * between citizens of different states. ' The seventh amendment preserves the trial by jury in suits at common law when the value in controversy shall exceed $20, and requires that no fact tried by a jury shall be re-examined in any court of the United States otherwise than according to the rules of the common law. The act of 1789, (1 U.s.St.at Large, p. 78,) in conferring jurisdiction on the circuit courts of the United States, uses precisely the words of the act of 1887-88: 'The circuit courts 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,' etc. The act of 1875 (18 St.p. 470) uses precisely the same language, but in the removal sections of that act the language is enlarged, and the words 'any suit at law' are used. The supreme court decided that under these words a suit could be removed notwithstanding the fact that the court could not have had original cognizance of it. Claflin v. Insurance Co., 110 U.S. 81, 3 S.Ct. 507. To reverse-- or perhaps we should say to prevent-- such construction in the future, the second section of the act of 1887-88 used the phraseology we have quoted.

What, then, is the meaning of this phrase, 'suits of a civil nature at common law? ' Mr. Justice Story, in Parsons v. Bedford, 3 Pet. 433, says:

'This phrase 'common law' is used in contradistinction to equity, and admiralty and maritime jurisdiction. By 'common law' they meant what the constitution denominated in the third article 'law,' not merely suits which the common law recognized among its old and settled proceedings, but suits in which legal rights were to be ascertained and determined, in contradistinction to those where equitable rights alone were recognized, and equitable remedies were administered.'

Commenting on this, Mr. Spear, in his Law of the Federal Judiciary, (page 23,) says:

'The term 'law' and the phrase 'common law,' as thus used, then mean precisely the same thing, and both have reference to legal remedies in distinction from such remedies as are applicable to cases in equity.'

Mr. Justice Bradley, in Gaines v. Fuentes, 92 U.S. 23, answering the question what is meant by the phrase 'suits of a civil nature at common law or equity,' used in the section of the act of 1789 conferring original jurisdiction on the circuit courts, and of the word 'suit,' used in the subsequent section, giving the right of removal, says:

'The phrase 'suits at common law,' and the corresponding term 'suit,' used in these sections, are undoubtedly of broad signification, and cannot be construed to embrace only ordinary actions at law, and ordinary suits in equity; but they must be construed to embrace all litigations between party and party which in the English system of jurisprudence, under the light of which the judiciary act as well as the constitution were framed, were embraced in all the various forms of procedure carried on in the ordinary courts of law and equity as distinguished from the ecclesiastical, admiralty, and military courts of the realm.'

It seems manifest from these authorities that the phrase, 'all suits of a civil nature at common law,' does not mean and is not confined to suits which are based on rights which own their origin to the common law as distinguished from rights created by statute. The phrase means all those suits in which the rights must be established and the remedies sought by the procedure known and prevailing in the courts of law, as distinguished from the procedure and the remedies prevailing in and administered by courts of equity,-- that is, by a court and jury. This is the construction practically taken by the courts of the United States. We see, among many other instances, the court taking jurisdiction of a case arising under a state statute in Gordon v. Longest, 16 Pet. 103. And in Railway Co. v. Cox, 145 U.S. 594, 12 S.Ct. 905, the court enforced the provisions of the Louisiana statute, which is in the words of Lord Campbell's Act, in the circuit court of the United States for a Texas district. The right to do this is asserted in Dennick v. Railroad Co., 103 U.S. 11. The rule is well put in Ex parte McNiel, 13 Wall. 243, decided in 1871:

'A state law may give a substantial right of such a character that, where there is no impediment arising from the residence of the parties, the right may be enforced in the proper federal tribunals, whether it be a court of equity, of admiralty, or of common law. The statute in such cases does not confer jurisdiction. That exists already, and it is invoked to give effect to the right by applying the appropriate remedy. This principle may be laid down as axiomatic in our national jurisprudence. A party forfeits nothing by going into a federal tribunal. Jurisdiction having attached, his case is tried there upon the same principles, and its determination is governed by the same considerations, as if it had been brought in the proper state tribunal of the same locality.'

So in Van Norden v. Morton, 99 U.S. 378:

'Whenever a statute grants a new right, or a new remedy for an old right, or whenever such rights and remedies are dependent on a state statute or an act of congress, the jurisdiction, as between the law side and the equity side of the federal courts, must be determined by the...