Coalmont Moshannon Coal Co. v. Matthew Addy Steamship & Commerce Corporation, Inc.

• Decision Date: 01 January 1921
• Citation: 271 F. 114
• Parties: COALMONT MOSHANNON COAL CO. v. MATTHEW ADDY STEAMSHIP & COMMERCE CORPORATION, Inc., et al.
• Court: U.S. Court of Appeals — Fourth Circuit

271 F. 114

COALMONT MOSHANNON COAL CO. v. MATTHEW ADDY STEAMSHIP & COMMERCE CORPORATION, Inc., et al.

United States District Court, E.D. Virginia.

January 1, 1921

Swink &amp Fentress, of Norfolk, Va., for plaintiff.

Cramer & Schmuck, of New York City, and Hughes, Little & Seawell, of Norfolk, Va., for defendant petitioner for removal.

WADDILL District Judge.

The above-named plaintiff duly instituted its attachment proceeding under a recent statute of the state of Virginia (Code, 1919, Sec. 6383) in the circuit court of Norfolk city and caused to be sued out of said court certain attachments against property alleged to belong to the principal defendant, in the hands of the codefendants, the railroads and coal exchanges, which attachments were properly served as required by the laws of the state of Virginia. Both the plaintiff and the principal defendant are nonresident corporations of the state of Virginia, the plaintiff having its principal office in the city of Philadelphia, and the principal defendant its principal office in the city of New York. Upon service of the attachment as aforesaid, the principal defendant, by appropriate proceeding, filed in the state court its petition praying the removal of the proceeding into the United States District Court for the Eastern District of Virginia, and the same was by the state court removed into this court. Thereupon the plaintiff appeared specially in this court, and moved to remand the case to the state court, from whence it had been removed, the grounds alleged therefor being especially that, inasmuch as both the plaintiff and principal defendant were nonresidents of the Eastern District of Virginia, assuming the case to be one which might have been originally brought in the federal court, the same could not be so removed, save with the consent of the plaintiff, which consent the plaintiff declined to give, and, on the contrary, asserted its right to have the proceeding remain in the state court.

Sections 24, 28, 29, and 51 of the Judicial Code, 36 Stat.L. 1087 (Comp. St. Secs. 991, 1010, 1011, 1033), regulate and control the jurisdiction of the United States District Courts in suits like the one at bar. Sections 24 and 51 deal with original jurisdiction. The former defines the character of suits, and the latter indicate the districts in which they may be brought. Section 28 authorizes removal to the District Court 'for the proper district' of suits brought in the state court, and which could have originally been brought in the United States District Court. Section 29 provides for the removal of such suits 'into the District Court to be held in the district in which such suit is pending.'

Much confusion has arisen in the interpretation of the removal statutes, especially in construing that part of the act which in effect limits the right of removal to such cases as might have been originally brought in the federal court; the beclouding of the question arising chiefly from confounding venue with jurisdiction, venue being something which can be waived by the parties, whereas jurisdiction cannot be. In an ordinary civil action instituted in a circuit court to recover judgment on a claim like the one in suit, it is conceded that the federal court of the district would have jurisdiction of such case, if instituted in a federal court upon the defendant appearing therein, and hence that the same was a suit of which that court would have had original jurisdiction, such as is contemplated by the removal statutes, upon the removal being timely and appropriately asked for. But the plaintiff insists that, while this is true of such a case if brought within the district of the plaintiff's residence, still, where brought, as here, in a district in which neither the plaintiff nor the defendant resides, the defendant's right of removal is limited, and cannot be had without the plaintiff's assent thereto. This is the sole question to be determined in this case. If the plaintiff is right in its contention, its motion to remand should be granted; otherwise, the same should be overruled.

In Hughes, Fed. Pro. (2d Ed.) c. 15, Sec. 115, p. 321, the author says:

'As to suits brought in a state court in a district where neither plaintiff nor defendant resided, the earlier decisions preponderated in favor of the doctrine that the defendant could remove such a case, on the theory that the defendant alone was interested in the place of suit; but later cases have established the doctrine that such a case is not removable by defendant without the consent or waiver of the question by plaintiff'

-- and cites in support of his position In re Wisner, 203 U.S. 449, 27 Sup.Ct. 150, 51 L.Ed. 264; In re Moore, 209 U.S. 490, 28 Sup.Ct. 585, 52 L.Ed. 904, 14 Ann.Cas. 1164; Ex parte Harding, 219 U.S. 363, 31 Sup.Ct. 324, 55 L.Ed. 252 37 L.R.A. (N.S.) 392; Puget Sound Sheet Metal Works v. Great Northern R.R. (D.C.) 195 F. 350. Other and more recent decisions apparently take the same view as those cited, of which the following may be referred to: Doherty v. Smith (D.C.) 233 F. 132; Pendar v. Empire Gas & Fuel Co. (D.C.) 260 F. 669; Isaac Kubie Co. v. Lehigh Valley R.R. Co. (D.C.) 261 F. 806; Kansas Gas & Electric Co. v. Wichita Natural Gas Co. (C.C.A. 8th Cir.) 266 F. 614; Ex parte Park Square Automobile Co., 244 U.S. 412, 37 Sup.Ct. 732, 61 L.Ed. 1368. See, also, Hall v. Great Northern R.R. Co. (D.C.) 197 F. 488, and Jackson v. Kenefick (D.C.) 233 F. 130. The last two cases, while dealing with the general subject,...