George v. Tennessee Coal, Iron & R. Co.

• Decision Date: 05 January 1911
• Docket Number: 2,244,at Law.
• Citation: 184 F. 951
• Parties: GEORGE v. TENNESSEE COAL, IRON & R. CO.
• Court: U.S. District Court — Northern District of Georgia

184 F. 951

GEORGE v. TENNESSEE COAL, IRON & R. CO.

No. 2,244, at Law.

United States Circuit Court, N.D. Georgia.

January 5, 1911

Reuben R. Arnold and Lamar Hill, for plaintiff.

Smith Hammond & Smith, for defendant.

NEWMAN District Judge.

This suit was brought in the city court of Atlanta, Ga., and was removed by the defendant to this court. A motion is seasonably made to remand the case to the state court. The petition to remove shows that the defendant is a citizen and resident of the state of Tennessee, and the plaintiff a citizen of the state of Alabama, and the suit was brought by the levy of an attachment on property wholly within the state of Georgia. The contention for the defendant is this:

'If this were an ordinary suit in personam, and service had been perfected on the defendant, it would not be a removable cause, under the settled rule laid down in the Wisner Case, 203 U.S. 449, 27 Sup.Ct. 150, 51 L.Ed. 264, as construed and restricted in Western Loan Co. v Butte, 210 U.S. 368, 28 Sup.Ct. 720, 52 L.Ed. 1101 and In re Moore, 209 U.S. 490, 28 Sup.Ct. 585, 706, 52 L.Ed. 904. We contend that the rule as to cases brought by attachment is different. * * * An attachment suit may be rightfully removed to the United States court, although it would not have been originally brought in the United States court for lack of ability to obtain personal service.'

In the Wisner Case it was held that, where a suit was brought in a district where neither the plaintiff nor defendant resided, such jurisdiction could not be maintained, even with the consent of both parties. This was modified by the decision of the court in the Moore Case, 209 U.S. 490, 28 Sup.Ct. 585, 706, 52 L.Ed. 904, to the extent that consent to be sued in a particular district in which neither the plaintiff nor the defendant was a resident might be waived by the defendant in a suit originally brought, and after removal might be waived by the plaintiff by appearance and pleading. The Supreme Court, in Re Winn, 213 U.S. 458, 469, 29 Sup.Ct. 515, 519, 53 L.Ed. 873, in referring to the Wisner Case, and its modification in the Moore Case, said:

'But that case (referring to the Moore Case) simply held that where there was a diversity of citizenship, which gave jurisdiction to some Circuit Court, the objection that there was no jurisdiction in a particular district might be waived by appearing and pleading to the merits, and anything to the contrary said in Ex parte Wisner, 203 U.S. 449 (27 Sup.Ct. 150, 51 L.Ed. 264), was overruled, though the Wisner Case was otherwise left untouched.'

So it seems clear, taking these decisions all together, that when a suit is brought in a district of which neither the plaintiff nor the defendant are residents, it will be remanded if a motion is seasonably made for that purpose, but if the plaintiff consents to the suit proceeding in the particular district, by appearance and pleading, the case will be retained in the Circuit Court. So the only question for consideration is whether the fact that the suit was brought by an attachment on land in this district is sufficient to give the court jurisdiction.

It is claimed that it comes within the provisions of Act March 3 1875, c. 137, Sec. 8, 18 Stat. 472 (U.S. Comp. St. 1901, p. 513), as kept in force and amended by the acts of 1887 (Act March 3, 1887, c. 373, 24 Stat. 552) and 1888 (Act Aug. 13, 1888, c....