Empire Min. Co. v. Propeller Tow-Boat Co. of Savannah

• Decision Date: 27 April 1901
• Citation: 108 F. 900
• Parties: EMPIRE MIN. CO. v. PROPELLER TOW-BOAT CO. OF SAVANNAH.
• Court: U.S. Court of Appeals — Fourth Circuit

108 F. 900

EMPIRE MIN. CO. v. PROPELLER TOW-BOAT CO. OF SAVANNAH.

United States Circuit Court, D. South Carolina.

April 27, 1901

Mitchell & Smith, for plaintiff.

Nathans & Sinkler, for defendant.

SIMONTON Circuit Judge.

This is a motion to strike this case from the docket, upon the ground that it is no longer within the jurisdiction of this court. Proceedings in attachment were commenced in the court of common pleas for Charleston county by W. B. Chisolm and E. B Addison, who carry on business under the name of the Empire Mining Company, against the Propeller Tow-Boat Company of Savannah, a corporation of the state of Georgia. W. B Chisolm is a citizen and resident of the state of South Carolina. E. B. Addison is a citizen and resident of the state of Virginia. The complaint having been filed, the defendant, before the time for answering had expired, entered a special appearance and filed its petition, with bond, praying that the case be removed into this court, upon the ground of diversity of citizenship. Thereupon the state court granted the prayer of the petition and the transcript of the record was filed in this court. After the cause was docketed here, the defendant gave notice of a motion to vacate the attachment theretofore issued in the cause, and to dismiss the summons and complaint. This motion the plaintiffs met with a motion to remand. The case came on to be heard, and this court, after argument, on May 22, 1899, entered an order remanding the case to the state court. Thereupon, on the same day, the plaintiffs filed a copy of the order remanding the cause in the state court, it being then in vacation. As soon as this order was filed, the plaintiffs presented their affidavit to the clerk of the state court that no demurrer or answer to the complaint had been filed or served on them, and the clerk, pursuing the practice in such case, made and provided, entered the cause on the default docket. After the 22d of May, the term not having expired in which the order for remand had been made, this court re-examined the question, became satisfied that the order to remand had been improvidently issued, and revoked it by an order filed June 7, 1899, at the same time refusing to remand the cause. The cause, being on the default docket of the state court, was called up on April 18, 1900, and, being an unliquidated demand, was submitted to a jury, and a verdict had for plaintiffs in the sum of $3,070.66. A motion was made to set aside the verdict upon the ground that the cause had been removed into the federal court. The motion was denied. An appeal was taken to the supreme court of the state, and the judgment below was affirmed, upon the ground that, the case having been remanded, the state court reassumed jurisdiction, and that the order revoking the remand came too late. 38 S.E. 156. The remittitur from the supreme court having gone down to the court below, the plaintiffs came into this court and entered the motion stated above. This motion proceeds upon two grounds: (1) That the cause was not removable into this court; (2) that, if it were removable, the order made on May 22, 1899, remanding it, went immediately into effect, and could not be revoked by this court.

The first ground was passed upon by the court in its order of June 7, 1899; but, inasmuch as the court then came to its conclusion upon a re-examination of the case, without further argument from plaintiffs' counsel, the matter will be further investigated, aided by the arguments on this motion. The jurisdiction of this court is challenged upon this ground: The statutes of the United States do not confer jurisdiction because of diversity of citizenship, where, as in this case, the plaintiffs are citizens and residents, one of the state of South Carolina and the other of the state of Virginia, and the defendant is a citizen and resident of the state of Georgia; that for some reason this state of facts is casus omissus. There can be no doubt that, in a cause brought within the original jurisdiction of this court, it must appear in the record that each plaintiff, if several plaintiffs, must be capable of suing, and each defendant, if several defendants, must be liable to the suit, in the federal court. Strawbridge v. Curtiss, 3 Cranch, 267, 2 L.Ed. 435. The act of 1887-88 provides that no civil suit can be brought in any circuit court of the United States against any person by original process in any other district than that whereof he is an inhabitant; but, where the jurisdiction is founded only on the fact that the action is between citizens of different states, suit shall be brought only in the district of the residence of either the plaintiff or the defendant. This is the personal privilege of the defendant. It can be waived. Trust Co. v. McGeorge, 151 U.S. 129, 14 Sup.Ct. 286, 38 L.Ed. 98. It therefore is not jurisdictional. Consent of parties cannot give jurisdiction. A fortiori, waiver cannot. Toland v. Sprague, 12 Pet. 300, 9 L.Ed. 1093. See, also, Ex parte Schollenberger, 96 U.S. 369, 24 L.Ed. 853; Martin v. Railroad Co., 151 U.S. 688, 14 Sup.Ct. 533, 38 L.Ed. 311. If, therefore, suit be brought in which there are several plaintiffs, citizens and residents of different states, against a defendant not an inhabitant of the state in which the suit is brought, he has the privilege of saying that he cannot be sued in that state, because the action if not brought in the state of his residence; nor can it be said to have been brought in the state of which plaintiffs are residents, as they reside in different states. Smith v. Lyon, 133 U.S. 315, 10 Sup.Ct. 303, 33 L.Ed. 635. But, inasmuch as this privilege does not affect the jurisdiction of the court, the defendant in the case supposed must seasonably interpose it by plea or otherwise, else he will be held to have waived it; and he surely can formally submit himself to the jurisdiction. This being so in a cause originally brought in this court, a fortiori the same result a case removed into the court. The supreme court of the United States in Railroad Co. v. Davidson, 157 U.S., at page 208, 15 Sup.Ct. 563, 39 L.Ed. 672, hold that the second section of the act of 1887-88, giving the right of removal, refers to the first part of section 1, by which jurisdiction is conferred on the circuit courts, and not to the clause of that section relating to the district in which suit is brought. This part of the first section defines the jurisdiction of the circuit courts in terms broad and without qualification. They, among other things, are given jurisdiction of all suits of a civil nature, at common law or in equity, 'in which there shall be a controversy between citizens of different states in which the matter in dispute exceeds, exclusive of interest and costs, the sum or value aforesaid ($2,000). ' So the cause is removable.

But can the defendant, when the cause is removed, interpose his privilege and dismiss the suit, and so defeat the jurisdiction of both courts? He cannot. We have seen that this privilege is not reserved to the defendant in removal cases. Besides this, he has waived this privilege, if it be reserved to him. He has by his own volition bound himself by his bond in the state court to come here at the earliest opportunity to enter his record therein, upon which entry the cause shall proceed in this court in the same manner as if it had been originally commenced therein. So he has come in and has invoked the jurisdiction of this court. Could he be heard now in saying that a court into which he has come of his own motion and from which he seeks relief has no jurisdiction over him, solely because he is a nonresident? In Sherwood v. Valley Co. (C.C.) 55 F. 4, Judge Hammond held that an act like this was a waiver of the personal privilege. The general proposition, showing the distinction between the jurisdiction in original cases and in removal cases, is discussed by Mr. Justice Brown, in Kansas City & T. R. Co. v. Interstate Lumber Co. (C.C.) 37 F. 6, 7. The conclusion that the petition to remove is in itself a waiver of all personal privilege is clearly shown in Bushnell v. Kennedy, 9 Wall. 393, 19 L.Ed. 736, and Seward v. Comeau, 14 Sup.Ct. 1209, 26 L.Ed. 438. To the same effect is Fisher v. Shropshire, 147 U.S. 145, 13 Sup.Ct. 206, 37 L.Ed. 116, in which a motion was made by a party removing a cause, after removal, to dismiss for want of jurisdiction. The court says:

'We are not prepared to say that the circuit court should be deprived of jurisdiction at the request of the party who voluntarily invoked it.'

In the present case the defendant's first act was to test before this court the validity of the attachment, and this itself brought the case within the jurisdiction. It is said however, that when a cause is removed into this court every objection to the action can be made by the defendant in the federal court which he could have made had it been brought originally in that court. This states the proposition too broadly. When a case is removed from a state court into the federal court, it comes over precisely in the same plight in which it left the state court. Duncan v. Gegan, 101 U.S. 812, 25 L.Ed. 875; Goldstein v. City of New Orleans (C.C.) 38 F. 626. If there be any inherent defect in the cause in the state court, the defendant does not, by removal, lose his right to object to it in the federal court. Goldey v. Morning News, 156 U.S. 525, 15 Sup.Ct. 559, 39 L.Ed. 517. So if the state court for any reason did not rightfully acquire jurisdiction over the person of the defendant, and the defect be not cured by a general appearance, the objection can be made in the federal court. But this is a different thing from the proposition that a defendant can file his petition for removal, and seek the...