Eddy v. Chicago & N.W. Ry. Co.

• Decision Date: 06 July 1915
• Parties: EDDY v. CHICAGO & N.W. RY. CO. et al.
• Court: U.S. District Court — Western District of Wisconsin

226 F. 120

EDDY v. CHICAGO & N.W. RY. CO. et al.

United States District Court, W.D. Wisconsin.

July 6, 1915

John A Person, of St. Paul, Minn., for plaintiff.

Edgar R. Hart, of Omaha, Neb., and William T. Faricy, of St. Paul Minn., for defendant Chicago & N.W. Ry. Co.

Richard L. Kennedy, of St. Paul, Minn., for defendant Chicago, St P., M. & O. Ry. Co.

SANBORN District Judge.

Motion to remand. This is an action at law, brought in the district court at St. Paul, Minn., for $3,208.97 damages and interest for the alleged failure to properly transport a consignment of sheep and lambs from Columbus, Mont., and Big Timber Mont., to Chicago, Ill. The plaintiff is a citizen of Montana, and both of the defendants are organized under the laws of Wisconsin and are citizens of that state. The defendant Omaha Company holds its stockholders' and directors' meetings in the state of its organization, but maintains offices in St. Paul, Minn., for the purpose of operating its railroad. The Chicago & Northwestern Company is organized in Wisconsin, Illinois, and Michigan, maintaining operating offices in each of those states, but holding its stockholders' and directors' meetings at Chicago, Ill.

Within a seasonable time the defendants petitioned to remove the suit into this court, and not into the District Court of the United States for the District of Minnesota. Plaintiff moved to remand, on the ground that the removal should have been made to the District Court of the district where the suit was pending, and not to the District Court of the district of Wisconsin, where the defendants are organized.

Defendants claim the right of removal to this district under section 28 of the Judicial Code, which provides that suits depending on diverse citizenship may be removed by the defendant therein to the District Court of the United States for the proper district, notwithstanding that section 29, regulating the practice on removal, provides that a party entitled to remove any suit mentioned in section 28 may remove such suit from a state court to the District Court of the United States to be held in the district where such suit is pending. An apparent conflict exists between the two sections, the District Court of Minnesota not being 'the proper district,' because by section 51 of the Judicial Code (Comp. St. 1913, Sec. 1033) an original suit in the federal court should have been commenced only either in Montana or in Wisconsin. Had the case been removed to the district of Minnesota, it could only be retained there by the consent of the plaintiff.

By the original Judiciary Act of 1789 (Act Sept. 24, 1789, c. 20, 1 Stat. 73), thirteen judicial districts were created, some of which included more than one state or part of a state. Thus, the Maine district included that part of Massachusetts lying east of New Hampshire; the Massachusetts district being the balance of that state. By section 12 of the act it was provided that suits involving diverse citizenship might be removed from state courts to the federal Circuit Court to be held in the district where the suit was pending, or, if the District of Maine, to the District Court next to be holden therein. It was further provided that no civil suit should be brought before either the District or the Circuit Court against an inhabitant of the United States, by any original process, in any other district than that whereof he was an inhabitant or in which he should be found at the time of serving the writ.

By the Revised Statutes the jurisdictional part of section 12 of the act of 1789 was placed in section 629 and the venue provision in section 739 without change of substance. Act March 3, 1875, c. 137, 18 Stat. 470, ignoring the arrangement of the Revised Statutes, returned to the form of the act of 1789 by placing the jurisdictional and venue provisions in the same section, and also enlarged the jurisdiction. In section 2 (Comp. St. 1913, Sec. 1010) it was provided that suits of diverse citizenship might be removed into the Circuit Court of the United States for the proper district, thus giving the right of removal to such district as might be the proper one in view of this and other provisions of the statute. Section 3 (Comp. St. 1913, Sec. 1011), relating to the question of removals, contained the same provision in respect to removal to the Circuit Court to be held in the district where the suit was pending as the act of 1789, and also contained the same provision as to the venue or place of suit; that is, that no civil suit should be brought, by any original process or proceeding, in any other district than that of which the defendant was an inhabitant or in which he might be found.

The acts of 1887-1888 (Act March 3, 1887, c. 373, 24 Stat. 552; Act Aug. 13, 1888, c. 866, 25 Stat. 433), restricting the federal jurisdiction, made some changes, which are substantially repeated in the Judicial Code. Suits involving diverse citizenship were to be removed into the Circuit Court for the proper district, and in the practice part of the statute it was provided, as in the case of the act of 1875, that the defendant might petition for removal to the Circuit Court of the district where such suit was pending. The venue provision was changed so as to provide that original suits should be brought in the district where the defendant was an inhabitant (omitting the provision in respect to his being found in the district), but, where the jurisdiction was founded only on the fact that the action was between citizens of different states, suit should be brought only in the district of the residence of either the plaintiff or the defendant.

It thus appears that for the first time there arose a doubt as to the construction of the words 'proper district.' As long as the acts of 1789 and 1875 were in force the proper district and the district where the suit was pending would be identical; but, when the act of 1887 in effect provided that the proper district should not include that in which the defendant might be found, there was, of course, a question as to whether the practice provision, providing that the defendant might petition for removal into the district where the suit was pending, should be construed so as to prevent removal into a district which was not the proper one, where the court could retain jurisdiction only with the consent of the plaintiff. The Judicial Code adopted the plan of separation of the Revised Statutes, by placing the jurisdictional provisions in section 24 (Comp. St. 1913, Sec. 991) and those relating to venue in sections 51-57 (sections 1033-1039).

Counsel for defendants submit the following argument in favor of the right of removal into either the district of Montana, where plaintiff resides, or into the Western district of Wisconsin, where defendants are organized:

'The suit not being properly removable to the district of Minnesota, notwithstanding the provision of section 29 that it may be removed into the district where the suit is pending, ^[1] the question arises whether it is removable at all-- whether the provision of section 28, that suits of diverse citizenship are removable to the 'proper district,' is to be entirely ignored for the reason that section 29 is inapplicable to a case like this. If the record had been filed in the Minnesota district, it is true that plaintiff might have waived objection, and allowed it to remain there, thus giving defendants an imperfect right of removal to the district where suit was pending. In re Moore, 209 U.S. 490, 28 Sup.Ct. 585, 706, 52 L.Ed. 904, 14 Ann.Cas. 1164. Here are four statutory provisions, harmonious in themselves, but one of which is not so broad as the others. They are sections 24, 28, 29, and 51. Section 24 declares the original jurisdiction, and applies to all cases of diverse citizenship which involve a sufficient amount in dispute. Section 28 declares the right of removal to exist as to the same class, and is just as broad as section 24. These two sections deal with the general question of jurisdiction, of subject-matter, and the status of diverse citizenship. Section 51, on the other hand, deals with venue, or jurisdiction of the person, by providing that suit shall be brought only in the district of the residence of either plaintiff or defendant. This section, like the other two, broadly applies to all cases of diverse citizenship, but has no application to jurisdiction of subject-matter. This leaves only section 29, which provides how the right to remove, given by section 28, shall be exercised. It is not quite as broad as section 28, because it does not fully reach a case like the one under consideration, where neither party resides in the state or in the district where the suit sought to be removed was begun. Ex parte Wisner held that no suit which cannot properly be originally brought in a federal court can be removed thereto from a state court, and although the case has on other points been limited, it has been repeatedly affirmed as to this. ^[2] In re Winn, 213 U.S. 458, 464 (29 Sup.Ct. 515, 53 L.Ed. 873); McLaughlin v. Hallowell, 228 U.S. 278, 284 (33 Sup.Ct. 465, 57 L.Ed. 835). Section 29, therefore, may be construed in a somewhat different way from sections 24 and 28. It relates entirely to procedure. No right of removal depends upon it. It tells how to exercise a right secured by other sections, and does not apply to cases having a wrong venue so fully as it does to others. Hence the provision of section 28, giving the right of removal to the 'proper district,' may rightly be given paramount force over section 29, of more limited application, providing for removal to the district where 'the suit is pending.' One statute gives the right, and should not be considered to be limited by another statute

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