Cooley v. McArthur

• Decision Date: 02 July 1888
• Citation: 35 F. 372
• Parties: COOLEY v. McARTHUR et al.
• Court: U.S. District Court — Eastern District of Michigan

35 F. 372

COOLEY v. McARTHUR et al.

United States Circuit Court, E.D. Michigan.

July 2, 1888

Alfred Russell, for plaintiff.

H. C Wisner, for defendants.

BROWN J.

By the first section of the act of March, 1887, the circuit courts are given original cognizance of all suits of a civil nature involving upwards of $2,000, in which there shall be 'a controversy between citizens of a state and foreign states citizens, or subjects,' with the further proviso that '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,' with an exception to this proviso not necessary to be noticed here. By the second section the right of removal is limited to cases 'of which the circuit courts of the United States are given original jurisdiction by the preceding section,' and a further clause provides that such right can only be exercised 'by the defendant or defendants therein being non-residents of that state ' It necessarily follows that, if this court would have original jurisdiction of an action against a non-resident alien, we have jurisdiction of this case; otherwise, not. The language of the first section indicates very strongly that if the defendant chose to plead in abatement of such a suit the plea would be sustained. We regard it as clear, however, that if such plea were not interposed, and the defendant pleaded in bar it would be a waiver of such plea, and the judgment would be valid. The difficulty arises from a misapprehension of the distinction between cases of which a court has not jurisdiction, and cases in which the defendant is privileged from suit within the jurisdiction. In the first class of cases all the facts necessary to give the court jurisdiction must be averred in the pleadings, or the judgment will be a nullity. In the second class no averment is necessary; the privilege is one which may be waived, and is waived by a plea of the general issue.

The case under consideration falls within the latter category. As the action is between a citizen and an alien, and it so appears by the pleadings, the court has jurisdiction of the case; and as the defendants themselves have invoked this jurisdiction, their action is a clear waiver of any personal privilege as to them, and it does not lie in the mouth of the plaintiff to make the claim for them. The distinction here drawn is by no means a novel one. So long ago as 1823 Mr Webster moved to dismiss the case of Gracie v. Palmer, 8 Wheat. 699, upon the ground that there was no averment in the record that the defendant in the circuit court was an inhabitant of the district, or was found therein at the time of serving of the writ. Mr. Chief Justice MARSHALL stated, however, that the uniform construction under the judiciary act had been that it was not necessary that this averment should appear upon the record; 'that it was sufficient if the court appeared to have jurisdiction by the citizenship or alienage of the parties. The exemption from arrest in a district in which the defendant was not an inhabitant, or in which he was not found at the time of serving of the process, was the privilege of the defendant, which he might waive by a voluntary appearance; that if process was returned by the marshal as served upon him within the...