Earles v. Germain Co., 620.

• Decision Date: 07 May 1920
• Docket Number: 620.
• Citation: 265 F. 715
• Parties: EARLES v. GERMAIN CO.
• Court: U.S. District Court — Southern District of Alabama

265 F. 715

EARLES v. GERMAIN CO.

No. 620.

United States District Court, S.D. Alabama, Southern Division.

May 7, 1920

R. H. &amp R. M. Smith, of Mobile, Ala., for plaintiff.

Armbrecht Johnston & McMillan, of Mobile, Ala., for defendant.

ERVIN District Judge.

This was a complaint filed in the circuit court of Mobile county Ala., and removed by the defendant to this court, which is the United States District Court for the Southern Division of the Southern District of Alabama, within which Mobile, the county within which the suit was originally brought, is located.

The petition for removal shows that petitioner is a foreign corporation, organized under the laws of the state of Pennsylvania, and has its principal place of business in the city of Pittsburgh, in said state, and is a nonresident of the state of Alabama; that plaintiff, at the time of the commencement of the suit, was a resident either of the state of Mississippi, or the state of Alabama. The suit was for a sufficient amount to bring it within the jurisdiction of this court.

Since the removal of the case to this court, the defendant has filed a verified plea in abatement, from which it appears that the plaintiff is a resident of the state of Mississippi and was such at the time of the institution of this suit. The plaintiff filed a motion to remand the case, in which it is set out that the cause of action did not arise in the state of Alabama, nor had to do with any contract or action, or any act had or done, or omitted to be done, in said state, and moves to remand the cause, on the ground that this court has no jurisdiction of said cause.

The question will at once be seen to be the same one which was presented first to this court in the case of Hohenberg v. Mobile Liners, in 245 F. 169, and again presented to me while sitting in the Northern district of Texas, and ruled on by me then, in the case of James v. Amarillo Light & Water Co. in 251 F. 337. The question has since been ruled on by a number of courts on both sides of the question, and among those taking the same view as I have taken are Judge Ray, in the Northern District of New York, in Matarazzo v. Hustis, 256 F. 882, and Judge Newman, in the Northern district of Georgia, in Sanders v. Western Union Tel. Co., 261 F. 697.

There are also a number of cases in which the opposite view is taken, following what was said in the Wisner Case, 203 U.S. 449, 27 Sup.Ct.

150, 51 L.Ed. 264. Among these cases is that of the Boise Commercial Club v. Oregon Short Line R.R. Co., 260 F. 769, . . . C.C.A. . . ., where the court, after citing the James Case, says that there was much force in the view there expressed, and he should be inclined to take a similar position, were it not for the action of the Supreme Court in 247 U.S. 505, 38 Sup.Ct. 427, 62 L.Ed. 1240, in denying a certiorari applied for in Guaranty Trust Co. of New York v. McCabe, 250 F. 699, 163 C.C.A. 31. From this it will be seen that the judgment of the court was that the correct position was that held in the James Case, where the Wisner Case was fully discussed, but the court felt constrained, by reason of the fact that a certiorari had been denied by the Supreme Court in a case where the opposite view had been expressed.

An examination of 247 U.S. 505, 38 Sup.Ct. 427, 62 L.Ed. 1240, will show that the Supreme Court made no mention whatever of the grounds of its ruling, nor expressed any opinion whatever on the question, but merely denied the writ of certiorari applied for, on what grounds we do not know. We find upon examination that in Ex parte Nicola, 218 U.S. 668, 31 Sup.Ct. 228, 54 L.Ed. 1203, and in Ex parte Tobin, 214 U.S. 506, 29 Sup.Ct. 702, 53 L.Ed. 1061, the Supreme Court denied a petition for a mandamus, where the opposite view had been expressed by the lower court. It may be said that the court in these cases denied the mandamus, because it was not the proper remedy, and yet we find that in the Wisner Case it was held to be the proper remedy, and that this view was not reconsidered by the Supreme Court until the case of Ex parte Harding, in 219 U.S. 363, 31 Sup.Ct. 324, 55 L.Ed. 252, 37 L.R.A. (N.S.) 392, so that at the time the application for the writs of mandamus was denied the Supreme Court was holding that mandamus was the proper remedy to test this question.

We have, therefore, as much authority in contending that the Supreme Court has, by its refusal to issue the writ, upheld the view of those of us who contend that a suit can be removed into a court in which it could not originally have been brought, as the other side has for contending that the Supreme Court is committed to the opposite view by its ruling in 247 U.S. If the two rulings are inconsistent, then logically they set the question at large, because one is as authoritative as the other. The fact that one was made later than the other, without referring to it, or showing that they intended to reconsider what was done in the Tobin and Nicola Cases, does not by any means indicate a reversal of the action of the court in these cases; therefore I contend that the Supreme Court has not bound the lower courts by anything it has done in its rulings on this question, but that the matter is still left to the judges of the lower courts to rule on as their judgment may be convinced by the question presented to them.

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