Cerri v. Akron-People's Tel. Co.

• Decision Date: 30 November 1914
• Docket Number: 8805.
• Citation: 219 F. 285
• Court: U.S. District Court — Northern District of Ohio
• Parties: CERRI v. AKRON-PEOPLE'S TELEPHONE CO. et al.

219 F. 285

CERRI v. AKRON-PEOPLE'S TELEPHONE CO. et al.

No. 8805.

United States District Court, N.D. Ohio, Eastern Division.

November 30, 1914

H. F Payer and R. A. Baskin, both of Cleveland, Ohio, for plaintiff.

Hoyt Dustin, Kelley, McKeehan & Andrews, of Cleveland, Ohio, and Stuart & Stuart, of Akron, Ohio, for defendant Akron-People's Telephone Company.

D. F Felmly and J. C. Frank, both of Akron, Ohio, for defendant Village of Cuyahoga Falls.

CLARKE District Judge.

This is an action for wrongful death. After the case was stated to the jury, but before any evidence was introduced, the court noted that by the answer of the village of Cuyahoga Falls the jurisdiction of the court was challenged by allegations on the part of that defendant that William McCracken, the plaintiff's decedent, was at the time of his death a citizen and resident of the state of Ohio, that his widow and heirs at law were all of them, at the time of the commencement of the action, citizens of the state of Ohio and all resided in the village of Cuyahoga Falls, Summit county Ohio; that the plaintiff is an alien and a citizen of the kingdom of Italy; that the widow of William McCracken declined the administration of his estate and requested the appointment of the plaintiff, an alien; that said plaintiff sought such appointment as administrator 'for the colorable, collusive, and fraudulent purpose' of seeking thereby to confer jurisdiction upon this court, and for no other purpose; and that said alien plaintiff has in fact no interest in the controversy, nor in said estate, save to collusively and fraudulently lend his name and aid to a colorable attempt to give jurisdiction in this action to this court.

The court, calling the attention of counsel to the question of jurisdiction thus raised at the threshold of the trial, asked for argument of it, and after discussion adjourned court for its consideration. On the further coming in of court the jury was excused, and the court announced that, following the practice indicated in Hartog v. Memory, 116 U.S. 588, 6 Sup.Ct. 521, 29 L.Ed. 725, Wetmore v. Rymer, 169 U.S. 115, 18 Sup.Ct. 293, 42 L.Ed. 682, and Toledo Traction Co. v. Cameron, 137 F. 48, 69 C.C.A. 28, and under authority of section 37 of the Judicial Code, an issue would be formulated by the court, that evidence would be taken, and the question thus raised as to the jurisdiction of the court decided before further progress of the trial. Thereupon the court stated to counsel that it would proceed to enter upon the hearing of the question following, viz.:

'Does this suit really and substantially involve a controversy properly within the jurisdiction of this court, or has the plaintiff, Nicola Cerri, as administrator of the estate of William McCracken, been improperly or collusively made plaintiff herein for the purpose of creating a case within its jurisdiction?'

By leave of court the Akron-People's Telephone Company amended its answer, so as to include substantially the allegations which have been quoted from the answer of the village of Cuyahoga Falls, and in addition alleged that for several years past the plaintiff, Nicola Cerri, has not devoted himself to the practice of his profession of physician, nor to any regularly recognized business or profession, other than that directly connected with his duties as consular agent of the kingdom of Italy; that he was never at any time a resident of the state of Ohio within the contemplation of the provisions of the Ohio statutes requiring that an administrator of the estate of any deceased citizen must be a resident of that state; that the appointment of Cerri was made through the solicitation of the widow and next of kin of said William McCracken, and their counsel, for the collusive and fraudulent purpose of invoking the jurisdiction of this court for the maintenance of this action, and for the purpose of preventing a trial of the cause of action herein sought to be enforced in Summit county, Ohio, in which each of the defendants was domiciled at all of the times involved in this litigation.

It is claimed in said amended answer as the effect of these allegations that the jurisdiction of this court has been fraudulently and collusively invoked, and that it is against public policy to allow the enforcement of such a cause of action by the consular representative of a foreign country. Section 37 of the Judicial Code reads as follows:

'If in any suit commenced in a District Court, or removed from a state court to a District Court of the United States, it shall appear to the satisfaction of the said District Court, at any time after such suit has been brought or removed thereto, that such suit does not really and substantially involve a dispute or controversy properly within the jurisdiction of said District Court, or that the parties to said suit have been improperly or collusively made or joined, either as plaintiffs or defendants, for the purpose of creating a case cognizable or removable under this chapter, the said District Court shall proceed no further therein, but shall dismiss the suit or remand it to the court from which it was removed, as justice may require, and shall make such order as to costs as shall be just.'

The case of Hartog v. Memory, 116 U.S. 588, 6 Sup.Ct. 521, 29 L.Ed. 725, was decided in 1886 and construes section 5 of the act of March 3, 1875 (18 Stat. 472, c. 137). This section was repealed by the Judicial Code in 1911, but was re-enacted word for word, substituting only the word 'District' for 'Circuit,' thus giving jurisdiction to the District Court, instead of to the Circuit Court.

In Morris v. Gilmer, 129 U.S. 315, 9 Sup.Ct. 289, 32 L.Ed. 690, it is said, when the record discloses a controversy of which the court cannot properly take cognizance, its duty is to proceed no further and to dismiss the suit, and its failure or refusal to do what under the law applicable to the facts proved it ought to do is an error which this court upon its own motion, will correct, when the case is brought here for review. The rule is inflexible and without exception (as was said upon full consideration in Mansfield, Coldwater, etc., R.R. v. Swan, 111 U.S. 379, 4 Sup.Ct. 510, 28 L.Ed. 462)--

'which requires this court, of his own motion, to deny its own jurisdiction, and, in the exercise of its appellate power, that of all other courts of the United States, in all cases where such jurisdiction does not affirmatively appear in the record on which, in the exercise of that power, it is called to act.'

In Hartog v. Memory, 116 U.S. 588, 6 Sup.Ct. 521, 29 L.Ed. 725, referred to above, the court says:

'Beyond this, no doubt, if from any source the court is led to suspect that its jurisdiction has been imposed upon by the collusion of the parties or in any other way, it may at once of its own motion cause the necessary inquiry to be made, either by having the proper issue joined and tried, or by some other appropriate form of proceeding, and act as justice may require for its own protection against fraud or imposition.'

Without reference to the facts of each particular case, the principles upon and the spirit in which the statute precisely similar in terms to section 37 of the Judicial Code should be applied in practice by the courts are clearly and emphatically expressed by the Supreme Court as follows, viz.:

Williams v. Nottawa, 104 U.S. 209, 211 (26 L.Ed. 719):

'It cannot for a moment be doubted that this was done 'for the purpose of creating a case' for Kline and Connor cognizable in the courts of the United States. That being so, it was the duty of the Circuit Court to dismiss the suit as to these bonds, and proceed no further; for as to them the controversy was clearly between citizens of the same state, Kline and Connor being the real plaintiffs. The transfer to Williams was colorable only, and never intended to change the ownership. This both Williams and Kline and Connor knew. * * * But, whatever may have been the practice in this particular under the act of 1789, there can be no doubt what it should be under that of 1875. In extending a long way the jurisdiction of the courts of the United States, Congress was specially careful to guard against the consequences of collusive transfers to make parties, and imposed the duty on the court, on its own motion, without waiting for the parties, to stop all further proceedings and dismiss the suit the moment anything of the kind appeared. This was for the protection of the court as well as parties against frauds upon its jurisdiction, for as was very properly said by Mr. Justice Miller, speaking for the court, in Barney v. Baltimore, 6 Wall. 280 (18 L.Ed. 825) such transfers for such purposes are frauds upon the court, and nothing more. * * * In this connection we deem it proper to say that this provision of the act of 1875 is a salutary one, and that it is the duty of the Circuit Courts to exercise their power under it in proper cases.'

Detroit v. Dean, 106 U.S. 541, 1 Sup.Ct. 563, 27 L.Ed. 300:

This 'was an attempt to get into the federal court upon a pretense that justice was impossible in the state courts, owing to the excited condition of the public mind. * * * The refusal to take legal proceedings in the local courts was a mere contrivance, a pretense, the result of a collusive arrangement to create for one of the directors a fictitious ground for federal jurisdiction. The case comes, therefore, within the purview, if not the letter, of the provisions of section 5 of Act March 3, 1875, c. 137, defining the jurisdiction of the Circuit Courts of the United States.' Farmington v. Pillsbury, 114 U.S. 138, 144, 5 Sup.Ct. 807, 810 (29 L.ed. 114):

'The old rule established by the decisions, which required all...