Foulk v. Gray

• Decision Date: 17 September 1902
• Citation: 120 F. 156
• Parties: FOULK v. GRAY et al.
• Court: U.S. Court of Appeals — Fourth Circuit

120 F. 156

FOULK v. GRAY et al.

United States Circuit Court, S.D. West Virginia.

September 17, 1902

Campbell Holt & Duncan, for plaintiff.

Vinson & Thompson, for defendants.

KELLER District Judge.

This was a suit originally brought in the circuit court of Mingo county, W. Va., by the plaintiff, a citizen and resident of Ohio, against the defendants, all of whom are citizens and residents of Kentucky. The suit was brought for an accounting under a contract made by the plaintiff for the sale of certain logs to defendants, and the manufacture of the same into lumber, etc. The bill also prayed for the appointment of a receiver, and a receiver was appointed in vacation of the state court, and without any notice to defendants, upon the averments of the bill. At March rules, 1902, the defendants filed in the clerk's office of the state court their petition, accompanied by bond in due form, setting up the fact that they, and each of them, are, and were at the time of the institution of this suit, citizens, residents, and inhabitants of the state of Kentucky, and that the plaintiff J. H. Foulk, is, and at the time of instituting said suit was, a citizen, resident, and inhabitant of the state of Ohio; that the matter in controversy exceeds in value the sum of $2,000; that defendants have not in any way appeared in said suit, and that the time to plead or answer has not yet expired, etc.; and praying that the court proceed no further except to make an order for the removal of the cause to the circuit court of the United States for the Southern district of West Virginia. On March 3, 1902, the said petition came on for hearing, and the court thereupon ordered that the cause 'be hence transferred and removed for trail to and in the circuit court of the United States for the Southern district of West Virginia, and that this court proceed no further therein. ' The plaintiff has moved in this court that the cause be remanded to the circuit court of Mingo county, W. Va., because this court is without jurisdiction in the premises.

This motion raises a most interesting question, and one which has been variously decided by the United States circuit and district courts, but which, under the present act (act of March 3, 1887, as corrected by act of August 13, 1888 (U.S. Comp. St. 1901, p. 508)), does not appear to have been directly passed upon by the supreme court of the United States. This question is said by Mr. Dillon, in his work on 'Removal of Causes,' to be well settled in favor of the right of removal in a case like the present. Judge Dillon's view is justified, treated as a statement derivable from the number of cases which have upheld that view, as compared with the number of holding the opposite view; but, after a most careful investigation, I am forced to the conclusion that the cases which uphold the right of removal in a case like the present are not founded upon the best and most careful reasoning. Without now going into the history of the cases which hold either against or for the right of removal, I will cite the following cases in which the different views are advanced: As against the jurisdiction, the cases of Yuba Co. v. Pioneer Gold Min. Co. (C.C.) 32 F. 183; Telegraph Co. v. Brown (C.C.) 32 F. 337; Harold v. Mining Co. (C.C.) 33 F. 529; Pitkin Co. Min. Co. v. Markell (C.C.) 33 F. 386; Shaw v. Mining Co., 145 U.S. 444, 12 Sup.Ct. 935, 36 L.Ed. 768; Railroad Co. v. Davidson, 157 U.S. 201, 15 Sup.Ct. 563, 39 L.Ed. 672; Cooley v. McArthur (C.C.) 35 F. 372; Tiffany v. Wilce (C.C.) 34 F. 230; Central Trust Co. v. Virginia, T. & C. Steel & Iron Co. (C.C.) 55 F. 769. Among the cases ruling that the jurisdiction in a case like the present will attach upon removal are Cowell v. Supply Co. (C.C.) 96 F. 769; Creagh v. Society (C.C.) 83 F. 849; Duncan v. Associated Press (C.C.) 81 F. 417; Long v. Long (C.C.) 73 F. 369; Sherwood v. Mississippi Valley Co. (C.C.) 55 F. 1; Bank v. Pagenstecher (C.C.) 44 F. 705; Uhle v. Burnham (C.C.) 42 F. 1; Amsinck v. Balderston (C.C.) 41 F. 641; Burck v. Taylor (C.C.) 39 F. 581; Kansas City & T.R. Co. v. Interstate Lumber Co. (C.C.) 37 F. 3; First Nat. Bank v. Merchants' Bank (C.C.) 37 F. 657, 2 L.R.A. 469; Hulbert v. City of Topeka (C.C.) 34 F. 511; Wilson v. Telegraph Co. (C.C.) 34 F. 561; Fales v. Railroad Co. (C.C.) 32 F. 673; and Whitworth v. Railroad Co. (C.C.) 107 F. 557, where many of the cases sustaining the jurisdiction are cited.

Notwithstanding that, numerically speaking, the trend of authority is distinctly in favor of the proposition last decided in Whitworth v. Railroad Co., supra, I have been able to find no authority which is strictly binding upon this court and as my views, derived from a construction of the act of March 3, 1887, in accordance with what I believe to be true principles, and in accordance with the trend of prior decisions of the supreme court of the United States upon kindred questions, lead me to an opposite conclusion, I feel impelled to set those views forth at some length.

First, then, I would say that the circuit and district courts of the United States have no jurisdiction except as it is conferred upon them by statute. They themselves are the creatures of statute, under the permissive power for their establishment provided in article 3 of the constitution of the United States, and the authority for the exercise of their powers in any given case must be found in the acts of congress defining their jurisdiction. The general policy impressed upon the constitution, and expressed particularly in the tenth amendment thereto, requires a strict construction of statutes conferring jurisdiction, and common justice and common right require that such construction shall be given to such jurisdictional statute as shall give equal rights to the parties plaintiff and defendant. Under the earlier acts of congress, the federal courts had no jurisdiction unless one of the parties was a citizen of the state where the suit was brought. If plaintiff was a citizen of one state, and defendant of another, the action could not be maintained in a federal court sitting within the limits of a third state, nor removed thereto. Moffat v. Soley, 2 Paine, 103, Fed. Cas. No. 9,688; White v. Fenner, 1 Mason, 520, Fed. Cas. No. 17,547; Shute v. Davis, Pet. C.C. 431, Fed. Cas. No. 12,828. But under the act of 1875 this could be done, provided the defendant was 'found' within the territorial jurisdiction of the particular federal court. Brooks v. Bailey (C.C.) 9 Fed. 438, 20 Blatchf. 85.

In order to obtain a correct view of the present jurisdictional statute, and a proper construction of its intent, which has often and justly been said by the highest authority to have been restrictive, we should follow the time-honored rule of looking to the old law, the mischief, and the remedy.

By the provisions of the act of March 3, 1875 (U.S. Comp. St. 1901, p. 508), jurisdiction was conferred upon the circuit courts of the United States in the same classes of cases as by the act of 1887, except that in the act of 1875 the jurisdictional value was any amount exceeding $500, whereas by the act of 1887 this value was raised to a sum exceeding $2,000. This change, as will be readily seen, was restrictive in its nature; but there is another change, which, if I read it aright, is far more so. In the act of 1875 the following language defines the particular court which shall have jurisdiction of a suit brought under the act:

'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, or in which he shall be found at the time of serving such process or commencing such proceeding, except as hereinafter provided.'

The exception therein referred to is to be found in section 2 of the act of 1875, which provides that any civil suit pending or hereafter brought in any state court, of the character described in section 1 of the act, and wherein the amount in dispute should exceed the sum of $500, might be removed by either party into the circuit court of the United States for the proper district. Thus it will be perceived that by that act suits of the character described might be brought by a plaintiff in the district of which the defendant was an inhabitant, or in any district where he might be found at the time of commencing suit, and, in addition to this, that any suit pending in a state court might be removed to the circuit court of the United States by either party thereto, although the conditions as to residence or presence of the defendant might be such that it could not have been directly instituted in the federal court.

Before commenting on the change introduced by the act of 1887 attention is called to the language of the act of 1875 in saying 'no civil suit shall be brought before either of said courts against any person by any original process or proceeding * * * except as hereinafter provided. ' The exception relates solely to removals, and therefore, by the direct terms of the act, they are to be regarded as an original method, process, or proceeding in the bringing of suits in federal courts. The act of March 3, 1887, which is the same, except for verbal corrections, as that of August 13, 1888 (U.S. Comp. St. 1901, p. 508), provided that no suit shall hereafter be brought in the federal courts by original process or proceedings against any person in any other district than that whereof he is an inhabitant, except that, where the jurisdiction is founded only on the fact that the action is between citizens of different states, 'suits shall be brought only in the district of the residence of either the plaintiff or the defendant. ' It is to be observed that the words 'except as...