Ex parte In the Matter of George F. Harding, Petitioner. No. ___, Original

• Decision Date: 20 February 1911
• Citation: 219 U.S. 363,55 L.Ed. 252,31 S.Ct. 324
• Parties: EX PARTE: IN THE MATTER OF GEORGE F. HARDING, Petitioner. No. ___, Original
• Court: U.S. Supreme Court

219 U.S. 363

31 S.Ct. 324

55 L.Ed. 252

EX PARTE: IN THE MATTER OF GEORGE F. HARDING, Petitioner.

No. ___, Original.

Submitted December 12, 1910.

Decided February 20, 1911.

Messrs. George F. Harding and William J. Ammen for petitioner.

[Argument of Counsel from pages 364-366 intentionally omitted] Mr. Chief Justice White delivered the opinion of the court:

By a motion for leave to file a petition for mandamus, George F. Harding seeks the reversal of the action of the circuit court of the United States for the northern district of Illinois, eastern division, in taking jurisdiction over a cause as the result of a refusal to grant a request of Harding to remand the case to a state court. The facts shown on the face of the motion papers are these:

On October 19, 1907, George F. Harding, the petitioner, alleging himself to be a resident of the state of California, sued in an Illinois state court various corporations alleged to be created by and citizens of the state of New Jersey, and fourteen individuals whose citizenship and residence were not given. The suit was brought by Harding as a stockholder in the Corn Products Company, one of the defendants, and the object of the suit was to annul an alleged unlawful merger of that company, and for relief in respect of an asserted misappropriation of its assets. On November 6, 1907, the Corn Products Company applied to remove to the circuit court of the United States for the northern district of Illinois, eastern division, on the ground that there was a separable controversy between it and Harding. By separate petitions all the other defendants united in the prayer for removal. The state court, not having acted on the petition for removal, the judge of the United States court, upon the application of the Corn Products Company, ordered the transcript of record from the state court to be filed and the case to be docketed. This being done, the Corn Products Company filed what was styled an amendment and supplement to the petition for removal, stating the residence and citizenship of the individuals named as defendants in the original bill, four of them being averred to be residents of Chicago, Illinois, one of Pekin, Illinois, and the others citizens and residents of states other than Illinois.

In December, 1907, Harding moved to remand to the state court, in substance upon the ground that there was no separable controversy, and that the requisite diversity of citizenship was not shown by the petition for removal, and especially directed attention to the fact that at the time of the commencement of the suit in the state court, he, Harding, was not a resident of the district, and that none of the corporate defendants were such residents.

Prior to the bringing of the Harding suit, a suit had been brought in an Illinois state court by the Chicago Real Estate & Trust Company, an Illinois corporation and a stockholder in the Corn Products Company, upon substantially the same grounds as those subsequently alleged in the Harding suit, against the principal corporations and individuals who were thereafter made defendants in the Harding suit. This cause had been removed by the Corn Products Company into the circuit court of the United States for the northern district of Illinois, eastern division, and on its removal, at the instance of the Corn Products Company, the court had restrained the real estate company, its officers, agents, attorneys, etc., from further prosecuting the cause in the state court. Immediately after the bringing of the Harding suit in the state court, the Corn Products Company applied to the circuit court, in the real estate company suit, to restrain Harding from prosecuting his suit, on the ground that the bringing of the same was a violation of the previous restraining order. The court issued a temporary restraining order. Thereafter, as we have said, the Harding suit was removed on the application of the Corn Products Company to the circuit court of the United States, and the motion to which we have referred was made by Harding to remand. That motion to remand, however, in consequence of the restraining order, which had been made permanent, was not heard until the summer of 1909, after the restraining order above referred to had been dissolved by the circuit court of appeals. 94 C. C. A. 144, 168 Fed. 658. Before the motion to remand, however, was passed upon, the circuit court granted permission to the Corn Products Company to amend its removal petition by alleging that, at the time of the commencement by Harding of his suit, and continuously thereafter, he was a citizen of Illinois and a resident of Chicago, in that state. To this Harding objected on the ground that the court was without power to allow an amendment, and that its jurisdiction was to be tested by the averments of the original removal petition. The permitted amendments having been filed, the motion to remand was denied. Harding thereupon, reiterating his objection to the allowance of the amendment and to the jurisdiction of the court to do other than remand the cause, traversed the averment in the amended removal petition as to his Illinois citizenship and residence, and specially prayed 'that there may be a speedy hearing and a decision of such issue of citizenship and a remand of this cause to the state court by the order of this court. . . .' The request for hearing was granted. A large amount of evidence was introduced on such hearing, which extended over a period of more than fifteen months, and the taxable costs, it is said, 'ran up into several thousands of dollars.' Finally, on October 25, 1910, the issue was decided against Harding. 182 Fed. 421. The court, finding from the proof that Harding was, as alleged in the amended petition, a citizen and resident of the state of Illinois, expressly refused the prayer for removal, made by Harding in his answer to the amended petition; in other words, the court reaffirmed and reiterated its previous action in refusing to remand the cause. Whether these facts give such color of right to the contention that we have jurisdiction to review the action of the trial court by the writ of mandamus as to lead us to be of opinion that further argument at bar is necessary, and therefore a rule to show cause should issue, is then the question for decision.

The doctrine that a court which has general jurisdiction over the subject-matter and the parties to a cause is competent to decide questions arising as to its jurisdiction, and therefore that such decisions are not open to collateral attack, has been so often expounded (see Dowell v. Applegate, 152 U. S. 327, 337, 38 L. ed. 463, 467, 14 Sup. Ct. Rep. 611, and cases cited), and has been so recently applied (United States use of Hine v. Morse, 218 U. S. 493, 54 L. ed. 1123, 31 Sup. Ct. Rep. 37), that it may be taken as elementary and requiring no further reference to authority. Nor is there any substantial foundation for the contention that this elementary doctrine has no application to decisions of courts of the United States, refusing to remand causes to state courts, since there is nothing peculiar in an order refusing to remand which differentiates it from any other order or judgment of a court of the United States concerning its jurisdiction. The importance of the subject which is involved in the contrary assertion, the apparent conflict between certain decided cases dealing with the right to review by mandamus orders of circuit courts refusing to remand, and a long and settled line of other cases relating to the same subject, the confusion and misapprehension which must result unless the conflict is reconciled or abated, and the duty to remove obscurity, as far as it may be done, concerning the review of questions of jurisdiction, all lead us to give the subject a more extended examination than it would otherwise be entitled to receive.

In Ex parte Hoard, 105 U. S. 578, 26 L. ed. 1176, the court was called upon to consider whether the judgment of a circuit court of the United States, declining to remand a civil cause to a state court from which it had been removed, was reviewable by the extraordinary process of mandamus. In refusing to exert jurisdiction by mandamus, and considering the inherent nature of the powers of a circuit court, it was declared that 'jurisdiction has been given to the circuit court to determine whether the cause is one that ought to be remanded,' and it was also observed that 'no case can be found in which a mandamus has been used to compel a court to remand a cause after it has once refused a motion to that effect.' Calling attention to the fact that the act of 1875, in § 5 [18 Stat. at L. 472, chap. 137, U. S. Comp. Stat. 1901, p. 511], expressly gave an appeal to or a writ of error from this court for the review of orders of circuit courts remanding causes, without regard to the amount involved, the court said: 'The same remedy has not been given if the cause is retained. It rests with Congress to determine whether a cuase shall be reviewed or not. If no power of review is given, the judgment of the court having jurisdiction to decide is final.'

In Re Pollitz, 206 U. S. 323, 51 L. ed. 1081, 27 Sup. Ct. Rep. 729, the facts were these: Pollitz, a citizen of the state of New York, sued in the supreme court of that state the Wabash Railroad Company, a consolidated corporation existing under the laws of the states of Ohio, Michigan, Illinois, and Missouri, and a citizen of the state of Ohio, and various other defendants chiefly citizens and residents of the state of New York. The Wabash Company removed the cause to the circuit court of the United States, on the ground of a separable controversy. A motion of Pollitz to remand was denied. The controversy was decided by this court on the hearing of a rule, which was granted on the application of Pollitz for a writ of mandamus to direct the remanding of the cause. The court, after stating (p. 331) the general rule...