Burck v. Taylor

• Decision Date: 16 August 1889
• Citation: 39 F. 581
• Parties: BURCK v. TAYLOR.
• Court: U.S. District Court — Western District of Texas

39 F. 581

BURCK v. TAYLOR.

United States Circuit Court, W.D. Texas.

August 16, 1889

F. G Morris, for plaintiff.

Walton Hill & Walton and Mr. Matlock, for defendant.

MAXEY J.

This suit was instituted by the plaintiff on the 8th day of December, 1888, in the district court of Travis county, Tex to recover of defendant damages in excess of $2,000, growing out of an alleged breach of contract. Citation was served upon Taylor in Travis county, returnable to the March term of court. On the 5th day of March, and prior to the time required by the laws of Texas for Taylor to answer the plaintiff's petition, he filed his petition and bond for the removal of the suit to this court. The order suspending further proceedings in the state court was entered during the same term, on the 21st day of June, and a copy of the record was seasonably filed in this court. A motion is now made by the plaintiff to remand the cause, mainly upon the following grounds:

'(1) Because neither the plaintiff nor the defendant is a resident of the Western district of Texas, this suit could not have originally been brought in this court; and as this court cannot acquire jurisdiction by removal from a state court of a case which could not have originally been brought in this court, it must follow that this court has no jurisdiction to try this case. (2) Because it appears from the record that the petition and bond for removal were not presented to the district court of Travis county for approval of the bond, or to pass on the petition, until long after the time when defendant was required by the laws of Texas to answer the plaintiff's petition. (3) Because the defendant did not enter his appearance in the district court of Travis county, and there is no condition in the bond for removal obligating himself to appear in this court, as is required to be in such bonds by law.'

The first ground of objection presents a serious question, and one which has not been passed upon by the supreme court. A brief reference to the facts as disclosed by the record is necessary to render perfectly intelligible the point raised by counsel. It appears that the plaintiff is a resident citizen of the Eastern district of Texas, and that the defendant is, or was at the date of the institution of this suit, a resident citizen of Cook county, Ill. Removal of the suit is sought on the ground of diverse citizenship. The argument of plaintiff's counsel assumes that the suit is one of which the court has not original jurisdiction, because neither the plaintiff nor defendant is a resident of this district, and therefore the cause is not removable under the act of congress. By the first section of the act of August 13, 1888, the circuit courts of the United States are given original cognizance, concurrent with the courts of the several states, of all suits of a civil nature, at common law or in equity, in which there shall be a controversy between citizens of different states, in which the matter in dispute exceeds, exclusive of interest and cost, the sum or value of $2,000. In the same section the following provision occurs:

'And no civil suit shall be brought before either of said courts against any person by any original process or proceeding in any other district than that whereof he is an inhabitant, 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.' 25 St.at Large, 434.

The second clause of section 2 of the act, which applies to this suit, reads as follows:

'Any other suit of a civil nature, at law or in equity, of which the circuit courts of the United States are given jurisdiction by the preceding section, and which are now pending, or which may hereafter be brought, in any state court, may be removed into the circuit court of the United States for the proper district by the defendant or defendants therein, being non-residents of that state.'

It is clear that to authorize removal of a suit under the second clause of the second section of the act the suit must be one of which the circuit courts have original jurisdiction, and I am not aware of any decision holding the contrary view. Now, counsel for plaintiff insists that the court would be without original jurisdiction for the reason that neither of the parties to the suit is a resident of this district, and that no United States court in Texas could take jurisdiction except the circuit court for the Eastern district,-- the plaintiff residing in the Eastern district, and the defendant in the state of Illinois. The court is unable to agree with counsel in his construction of the statute, for it seems to ignore the defined and well-recognized distinction between questions of jurisdiction proper and the mere place of suability. This distinction is clearly indicated by the supreme court in Ex parte Schollenberger. In that case Mr. Chief Justice WAITE, speaking for the court, says:

'The act of congress prescribing the place where a person may be sued is not one affecting the general jurisdiction of the courts. It is rather in the nature of a personal exemption in favor of a defendant, and it is one which he may waive. If the citizenship of the parties is sufficient, a defendant may consent to be sued anywhere he pleases; and certainly jurisdiction will not be ousted because he has consented.' 96 U.S. 378.

The precise question here presented was raised before Judge BREWER in the case of Railroad Co. v. Lumber Co., and in a well-considered opinion he held that the fact that both parties were non-residents of the district did not oust the court of jurisdiction in a case removed from the state court by the non-resident defendant. In the discussion of the question he uses this language:

'The same distinction between the general matter of jurisdiction and the particular court for suit and trial is recognized in Fales v. Railway Co., 32 F. 673; Gavin v. Vance, 33 F. 84; Loomis v. Coal Co., Id. 353. Turning to the second section, we find that the removable suits are those of which, by the first section, the federal courts are given jurisdiction. The language speaks of jurisdiction generally, and of courts in the plural. Any suit is removable of which any federal circuit court might take jurisdiction, and the mere fact that the defendant

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