Gavin v. Vance

• Decision Date: 24 December 1887
• Citation: 33 F. 84
• Court: U.S. District Court — Western District of Tennessee
• Parties: GAVIN v. VANCE.

33 F. 84

GAVIN v. VANCE.

United States Circuit Court, W.D. Tennessee.

December 24, 1887

H. C Warinner, for the motion.

C. F Vance, contra.

HAMMOND J.

Since the argument of this motion, counsel for the plaintiff has suggested an additional ground for remanding the case, which will be first considered. He cites the case of Yuba Co v. Mining Co., 32 F. 183, and insists that, under the new act of congress of March 3, 1887, (24 St. 552,) this court could have had no original jurisdiction of this case because the defendant Vance, not being an inhabitant of this district, could not have been sued here; and, such being the fact, that the cause cannot be removed under the second section of the new act, which confines the right of removal to those cases of which this court could have acquired original jurisdiction under the first section of the act. The case cited seems to hold this, unless there be a distinction between corporations and natural persons in relation to this jurisdiction, that being a case of foreign corporations seeking to remove their suit into the federal court.

The act is undoubtedly perplexing in its structural arrangement, and very obscure on that account; but a careful analysis of the several provisions brings out its meaning quite clearly, and it is a mistake, in my judgment, to say that this court could not have acquired original jurisdiction of this suit. Without any attention, for the moment, to the mere phraseology of the act, I will state what seems to me its clear purport, and the spirit of the changes in regard to the locality of the suit or territorial limitations of the jurisdiction, and the limitations upon the right of removal.

Before this act, under the then existing law, a controversy between citizens of different states could be brought into any federal court where the defendant could be served with process. Thus, to find an example for illustration in the facts of this case, a citizen of Tennessee could sue a citizen of Mississippi, local requirements aside, as in ejectment, in any district where he could find the defendant, whether in Mississippi, where the defendant is an inhabitant, in Tennessee, where the plaintiff himself resides, in New York, or elsewhere. The new act restricts this freedom of selection on the part of the plaintiff, and confines him to two districts only,-- that of which the defendant is an inhabitant, and that wherein the plaintiff himself resides. As to these two the plaintiff has the same freedom of selection that he had before, and may sue his adversary in either whenever he can serve the process. Therefore the plaintiff, Gavin, in this case could have sued the defendant Vance as well in this court as in a federal court in Mississippi, the plaintiff being a 'resident' of this district, and the defendant an 'inhabitant' of that state.

Again, heretofore, such a controversy as that mentioned between citizens of different states, if brought by suit in a state court anywhere, according to the laws of that state, might have been removed to the proper federal court by either party, plaintiff or defendant. Now, under the new act, the plaintiff, having chosen his forum, no matter where, must remain in that forum, and he cannot remove at all. But any defendant sued, not in a court of his own state, but in the state court of the plaintiff, may always remove, by compliance with the procedure devised for that purpose. If sued in a court of his own state, he cannot remove at all, not even under the local prejudice clause of the new act, for, presumably, being in his home court, he will be never at any disadvantage as against a foreigner.

Keeping in view these two fundamental considerations governing the jurisdiction over controversies between citizens of different states, as contradistinguished from controversies arising under the constitution and laws of the United States, or the treaties made in pursuance thereof, etc., and remembering always the traditional and historical reason for the existence of that jurisdiction, as one preferable to the state jurisdiction over those same controversies, or, if not preferable, at least rightfully optional, and keeping these fundamental conceptions of the act always together in reading it, and it becomes at once intelligent and intelligible and absolutely consistent, so far as it concerns this class of suits, from beginning to end; but if, wandering among the shattered purposes or designs of former acts, we seek any other spirit for this, and try to interpret it in conformity with the more liberal provisions of that legislation, or as a mere amendment of former laws, we are at once lost in a maze of wholly inconsistent phrases, that become meaningless and uninterpretable, according to the rules for construing statutes.

If, for instance, the case above cited has put the proper construction on the act, it renders nugatory, it seems to me, every provision for the removal of this class of cases; nobody being entitled to remove any one of them at all under any circumstances, and only suits in which the jurisdiction depends upon the subject-matter of the suits, and not the diverse citizenship of the parties, are removable; for there is nothing plainer in the act than the intention that a defendant sued in his own state court shall not remove the case. If he cannot, and citizens of other states made defendants in a state court cannot, as that case is thought to hold, who can remove? And, if neither of these, then why put any provision in the act for the removal of such suits at all? This seems conclusive to me against that interpretation of the act, if what is there ruled as to corporations is to be applied to natural persons, and whether it be a proper construction, even as to corporations, need not be now determined.

The former legislation had pushed the jurisdiction of the federal courts almost to the very verge of the constitutional grant, but this reactionary legislation returns, in deference to the local jealousy of the states to, that policy of restriction which entered so largely into the structure of the original act of 1789, consequent upon the struggle to form any union at all, from which its projectors had just emerged. Yet, notwithstanding this manifestly restrictive policy, the new act should be judicially treated, so far as it goes, as other voluntary legislative grants of jurisdiction are, and nothing should be implied, as some of the cases considering the act seem to suggest, from those restrictions themselves, which is inconsistent with the rule of a liberal construction in furtherance of the accomplishment of the designated purpose of the congressional grant, whatever that purpose be. Here there is a manifest intention to afford such protection as is assumed to be found in the federal jurisdiction to every non-resident defendant sued by his adversary in the home courts of that adversary, against any possible partiality in those courts.

Turning, now, to the phraseology of the act, let us examine it in relation to this character of suit, where the jurisdiction is dependent only on the diverse citizenship of the parties. And first as to the original jurisdiction which this court might have acquired over this suit, does not the act in its first section say in so many words '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? ' It is said in the case cited that this clause is 'prohibitory in form' and 'does not enlarge the jurisdiction, or confer jurisdiction in a case otherwise expressly prohibited. ' It is, indeed, prohibitory, or rather restrictive, in form, and possibly does not enlarge any previously granted jurisdiction; and yet it is not as prohibitory or restrictive as the statement suggests; and that is the real question,-- How far does the prohibition or restriction go? The provision of the act, which is said not to have been enlarged, is in these words: 'And no civil suit shall be brought before either of said courts against any person by any original process of [sic] proceeding in any other district than that whereof he is an inhabitant. ' Now, this prohibition has been in every act from 1789 down, and yet the jurisdiction was in fact enlarged, notwithstanding that prohibition in the original act, by the very next clause, which reads, 'or in which he shall be found at the time of serving the writ,' (1 St. 79;) and, likewise, it was enlarged in the act of 1875 by the next clause thereto, which reads, 'or in which he shall be found at the time of serving such process or commencing such proceeding, except as hereinafter provided,' (18 St. 470;) and so there was an extension of the privilege of the plaintiff to sue in other districts than that whereof the defendant was an inhabitant, until we had that freedom of selection of a district in which to sue that has been already described.

If these clauses could enlarge the jurisdiction in those acts notwithstanding the leading prohibition, why cannot the new clause of the new act enlarge it to the extent indicated of allowing the plaintiff two districts only, instead of so many as he had before? But the fact is, this new clause assumes a prohibitory, or more properly a restrictive form, because the new act is in form amendatory, and the language is seeking to restrict the broad permission of former acts to sue the defendant wherever found; but non constat that it goes as far in its prohibition as the case cited seems to hold that it does. The other language quoted from the new act must have effect, and the plaintiff be thereby permitted to sue 'in the district of the residence of either the plaintiff ...