German Sav. & Loan Soc. v. Dormitzer

• Decision Date: 06 June 1902
• Docket Number: 780.
• Citation: 116 F. 471
• Parties: GERMAN SAVINGS & LOAN SOC. v. DORMITZER et al.
• Court: U.S. Court of Appeals — Ninth Circuit

116 F. 471

GERMAN SAVINGS & LOAN SOC. v. DORMITZER et al.

No. 780.

United States Court of Appeals, Ninth Circuit.

June 6, 1902

Struve, Allen, Hughes & McMicken, Happy & Hindman, and W. S Goodfellow, for appellant.

Lucius B. Nash, Lucius G. Nash, James Dawson, and Frederick W Dewart, for appellees.

Before GILBERT and ROSS, Circuit Judges, and HAWLEY, District Judge.

ROSS Circuit Judge.

This suit was commenced in a state court of Washington, from which, on the petition of the appellant, it was transferred to the circuit court of the United States for the district of Washington, in which court it was tried on its merits, and a decree entered therein, from which decree the German Savings & Loan Society took and was allowed an appeal. Upon the calling of the case for argument in this court, counsel for the appellant announced that they had just discovered that the suit was properly removed from the state court, and that the circuit court had not, nor has this court, any jurisdiction over it, for the reason that the case presented no separable controversy nor did such diverse citizenship exist as would confer jurisdiction upon the federal court. As the case was removed from the state court upon the petition of the appellant, it is insisted on the part of the appellees that it is estopped from now raising the question of jurisdiction; counsel relying largely upon the following clause of the opinion of the supreme court in the case of Cowley v. Railroad Co., 159 U.S. 569, 583, 16 Sup.Ct. 127, 40 L.Ed. 203:

'The case having been removed to the circuit court upon petition of defendant, it does not lie in its mouth to claim that such court has no jurisdiction of the case, unless the court from which it was removed had no jurisdiction.'

This language must be read in connection with the facts of the case about which the court was speaking. It is never permissible to select certain sentences or paragraphs of an opinion, detach them from their context, and give them universal application. In the case of Railroad Co. v. Swan, 111 U.S. 379, 4 Sup.Ct. 510, 28 L.Ed. 462, and in other cases there cited, the supreme court declared the rule to be inflexible and without exception that the judicial power of the United States cannot be exerted in a case to which it does not extend, even if both parties desire it to be exerted; and that the court 'must, of its own motion, deny its own jurisdiction, and, in the exercise of its appellate power, that of all other courts in the United States, in all cases where such jurisdiction does not affirmatively appear in the record on which, in the exercise of that power, it is called to act. On every writ of error or appeal the first and fundamental question is that of jurisdiction, first, of this court, and then of the court from which the record comes. This question the court is bound to ask and answer for itself, even when not otherwise suggested, and without respect to the relation of the parties to it. ' See, also, Craswell v. Belanger, 6 C.C.A. 1, 56 F. 529, and numerous cases there cited. We do not think that the supreme court had any intention of changing this long and well-established rule by the concluding clause of its opinion in the case of Cowley v. Northern Pacific Railroad Company, above quoted.

There are, therefore, but two questions for consideration on this motion; that is to say, whether the requisite diverse citizenship or the requisite separable controversy existed to confer jurisdiction on the United States circuit court. And, in respect to the first, the law is that the difference of citizenship, on which the right of removal depends, must have existed at the time when the suit was begun, as well as at the time of removal. Gibson v. Bruce, 108 U.S. 561, 2 Sup.Ct. 873, 27 L.Ed. 825; Railroad Co. v. Swan, supra. In neither the complaint filed in the state court nor in the petition presented by the German Savings & Loan Society for its removal to the federal court did it appear of what state were the plaintiffs Dora May Dormitzer or William L. Tull citizens, and as, according to the uniform decisions of the federal courts upon this point, the jurisdiction of the circuit court fails unless the necessary citizenship is made to appear, the presumption is necessarily against it. Grace v. Insurance Co., 109 U.S. 278, 283, 3 Sup.Ct. 207, 27 L.Ed. 932; Robertson v. Cease, 97 U.S. 646, 24 L.Ed. 1057; Railroad Co. v. Swan, and Craswell v. Belanger, supra. It is true that, prior to the filing of the petition for the removal of the suit, the court had, on motion of the plaintiffs Dormitzer and Tull, and against the protest of their coplaintiffs, made and entered an order dismissing them from the suit; but their coplaintiffs thereupon made a motion that the order be vacated and set aside, which latter motion, the record shows, was pending and undetermined in the state court at the time of the petition for and transfer of the cause to the circuit court, and was by that court subsequently granted. They were never, therefore, finally dismissed as parties plaintiff. Moreover, the petition for the transfer of the suit was only made by one of the defendants thereto,-- the German Savings & Loan Society,-- which is insufficient. Railroad Co. v. Martin, 178 U.S. 245, 248, 20 Sup.Ct. 854, 44 L.Ed. 1 55; Yarnell v. Felton, 102 F. 369, 370, and cases there cited.

The contention on the part of the appellees that the defendants Francis M. Tull and Ernest B. Tull were nominal defendants only cannot be sustained, for the reason hereinafter stated. Jurisdiction in the circuit court over the suit cannot therefore, be sustained on the ground of diverse citizenship of the parties, and, as a matter of fact, the removal was not sought on that ground. The petition proceeded upon the ground that there was a separable controversy, but an examination of the complaint very clearly shows that there was nothing of the kind in the case. In order to justify a removal on the ground of a separate controversy between citizens of different states, said the supreme court in Torrence v. Shedd, 144 U.S. 530, 12 Sup.Ct. 727, 36 L.Ed. 528, 'there must, by the very terms of the statute, be a controversy 'which can be fully determined as between them'; and by the settled construction of this section, the whole subject-matter of the statute must be capable of being finally determined as between them, and complete relief afforded as to the separate cause of...