Ex parte Abram C. Wisner. riginal

CourtUnited States Supreme Court
Citation203 U.S. 449,51 L.Ed. 264,27 S.Ct. 150
Docket NumberO,Nos. 9,10,s. 9
PartiesEx parte ABRAM C. WISNER. riginal
Decision Date10 December 1906

Abram C. Wisner, a citizen of the state of Michigan, commenced an action at law, on February 17, A. D. 1906, in the circuit court in and for the city of St. Louis and state of Missouri, against John D. Beardsley, a citizen of the state of Louisiana, by filing a petition, together with an affidavit on which that court issued a writ of attachment, in the usual form, directed to the sheriff of St. Louis. The sheriff returned no property found, but that he had garnisheed the Mississippi Valley Trust Company, a corporation of Missouri, and also had served Beardsley with summons in the city of St. Louis.

Saturday, March 17, A. D. 1906, the garnishee answered, and on the same day Beardsley filed his petition to remove the action from the state court into the circuit court of the United States for the eastern division of the eastern district of Missouri, on the ground of diversity of citizenship, together with the bond required in such case. An order of removal was thereupon entered by the state court and the transcript of record was filed in the circuit court of the United States.

Monday, March 19, Wisner moved to remand in these words:

'Now at this day comes plaintiff, by his attorneys, Jones, Jones, & Hocker, and appearing specially for the purposes of this motion only, saving and reserving any and all objections which he has to the manifold imperfections in the mode, manner, and method of the removal papers, and expressly denying that this court has jurisdiction of this cause, or of the plaintiff therein, respectfully moves the court to remand this cause to the circuit court of the city of St. Louis, from whence it was removed, for the reason that this suit does not involve a controversy or dispute properly within the jurisdiction of this court, and that it appears upon the face of the record herein that the plaintiff is a citizen and resident of the state of Michigan and the defendant a citizen and resident of the state of Louisiana, and the cause is not one within the original jurisdiction of this court; hence this court cannot acquire jurisdiction by removal.'

The motion was heard and denied April 2, 1906, the circuit court referring to Foulk v. Gray, 120 Fed. 156, and Rome Petroleum & Iron Co. v. Hughes Specialty Well Drilling Co. 130 Fed. 585, as representing the different views of the courts below on the question involved.

On April 23, Wisner applied to this court for leave to file a petition for mandamus as well as a petition for prohibition; leave was granted, and rules entered, returnable May 14, 1906, and the cases submitted on the returns to the rules.

Messrs. J. J. Darlington, James C. Jones, H. S. Mecartney, G. G. B. Drummond, Oliver & Mecartney, and Jones, Jones, & Hocker for petitioner.

[Argument of Counsel from pages 450-454 intentionally omitted] Messrs. John M. Moore, Edward C. Eliot, and George H. Williams for respondent.

Mr. Chief Justice Fuller delivered the opinion of the court:

By article 3 of the Constitution the judicial power of the United States was 'vested in one Supreme Court, and in such inferior courts as the Congress may, from time to time, ordain and establish.'

And the judicial power was extended 'to all cases, in law and equity, arising under this Constitution, the laws of the United States, and treaties made, or which shall be made, under their authority; to all cases affecting ambassadors, other public ministers, and consuls; to all cases of admiralty and maritime jurisdiction; to controversies to which the United States shall be a party; to controversies between two or more states; between a state and citizens of another state; between citizens of different states; between citizens of the same state claiming lands under grants of different states, and between a state or the citizens thereof, and foreign states, citizens, or subjects.'

The Supreme Court alone possesses jurisdiction derived immediately from the Constitution, and of which the legislative power cannot deprive it (United States v. Hudson, 7 Cranch, 32, 3 L. ed. 259); but the jurisdiction of the circuit courts depends upon some act of Congress (Turner v. Bank of North America, 4 Dall. 8, 10, 1 L. ed. 718, 719; McIntire v. Wood, 7 Cranch, 504, 506, 3 L. ed. 420, 421; Sheldon v. Sill, 8 How. 441, 448, 12 L. ed. 1147, 1150; Stevenson v. Fain, 195 U. S. 165, 167, 49 L. ed. 142, 143, 25 Sup. Ct. Rep. 6). In the latter case we said: 'The use of the word 'controversies' as in contradistinction to the word 'cases,' and the omission of the word 'all' in respect of controversies, left it to Congress to define the controversies over which the courts it was empowered to ordain and establish might exercise jurisdiction, and the manner in which it was to be done.'

The 1st section of the act of March 3, 1887 (24 Stat. at L. 552, chap. 373), as corrected by the act of August 13, 1888 (25 Stat. at L. 433, chap. 866) amended §§ 1, 2, and 3 of the act of Congress of March 3, 1875 (18 Stat. at L. 470, chap. 137, U. S. Comp. Stat. 1901, p. 508), as follows:

'That the circuit courts of the United States shall have original cognizance, concurrent with the courts of the several states, of all suits of a civil nature, at common law or in equity, where the matter in dispute exceeds, exclusive of interest and costs, the sum or value of two thousand dollars, and arising under the Constitution or laws of the United States, or treaties made, or which shall be made, under their authority, or in which controversy the United States are plaintiffs or petitioners, or 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; . . . But no person shall be arrested in one district for trial in another in any civil action before a circuit or district court; and 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; 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; . . .

'Sec. 2. That any suit of a civil nature, at law or in equity, arising under the Constitution or laws of the United States, or treaties made, or which shall be made, under their authority, of which the circuit courts of the United States are given original jurisdiction by the preceding section, which may now be pending, or which may hereafter be brought, in any state court, may be removed by the defendant or defendants therein to the circuit court of the United States for the proper district. Any other suit of a civil nature, at law or in equity, of which the circuit courts of the United States are given jurisdiction by the preceding section and which are now pending, or which may hereafter be brought, in any state court, may be removed into the circuit court of the United States for the proper district by the defendant or defendants therein, being nonresidents of that state. And when, in any suit mentioned in this section, there shall be a controversy which is wholly between citizens of different states, and which can be fully determined as between them, then either one or more of the defendants actually interested in such controversy may remove said suit into the circuit court of the United States for the proper district. And where a suit is now pending, or may be hereafter brought, in any state court, in which there is a controversy between a citizen of the state in which the suit is brought and a citizen of another state, any defendant, being such citizen of another state, may remove such suit into the circuit court of the United States for the proper district, at any time before the trial thereof, when it shall be made to appear to said circuit court that, from prejudice or local influence, he will not be able to obtain justice in such state court, . . .

'Whenever any cause shall be removed from any state court into any circuit court of the United States, and the circuit court shall decide that the cause was improperly removed, and order the same to be remanded to the state court from whence it came, such remand shall be immediately carried into execution, and no appeal or writ of error from the decision of the circuit court so remanding such cause shall be allowed.'

Section 3, as amended, provided for petition and bond for 'the removal of such suit into the circuit court to be held in the district where such suit is pending.'

As it is the nonresident defendant alone who is authorized to remove, the circuit court for the proper district is evidently the circuit court of the district of the residence of the plaintiff.

And it is settled that no suit is removable under § 2 unless it be one that plaintiff could have brought originally in the circuit court. Tennessee v. Union & Planters' Bank, 152 U. S. 454, 38 L. ed. 511, 14 Sup. Ct. Rep. 654; Mexican Nat. R. Co. v. Davidson, 157 U. S. 208, 39 L. ed. 675, 15...

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    ...S.Ct. 106, 67 L.Ed. 244, and Lee v. Chesapeake & Ohio Ry. Co., 260 U.S. 653, 43 S.Ct. 230, 67 L.Ed. 443, overruling Ex parte Wisner, 203 U.S. 449, 27 S.Ct. 150, 51 L.Ed. 264, and qualifying In re Moore, 209 U.S. 490, 28 S.Ct. 585, 706, 52 L.Ed. 904. 35 Bass v. Hutchins, 417 F.2d 692 (5th Ci......
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