Hall v. Great Northern Ry. Co.

• Decision Date: 17 July 1912
• Docket Number: 247.
• Parties: HALL et al. v. GREAT NORTHERN RY. CO.
• Court: U.S. District Court — District of Montana

197 F. 488

HALL et al. v. GREAT NORTHERN RY. CO.

No. 247.

United States District Court, D. Montana.

July 17, 1912

L Frank Brown and Sidney M. Logan, both of Kalispell, Mont and Walsh & Nolan, of Helena, Mont., for plaintiffs.

Veazey & Veazey, of Great Falls, Mont., and Noffsinger & Walchli, of Kalispell, Mont., for defendant.

BOURQUIN District Judge.

This is a motion to remand. Plaintiffs are citizens and residents of Canada, and defendant is a citizen and resident of Minnesota a corporation and common carrier owning and operating a railway in and through the county of Montana wherein the suit was commenced.

Plaintiffs contend that against their objections this court has no jurisdiction on removal, citing Mahopoulus v. Railway Co (C.C.) 167 F. 169; Kamenicky v. Printing Co. (C.C.) 188 F. 400; Sagara v. Railway Co. (C.C.) 189 F. 222. Defendant contends to the contrary, citing Barlow v. Railway Co. (C.C.) 164 F. 765; Decker, Jr., & Co. v. Railway Co. (C.C.) 189 F. 224; Bogue v. Railway Co. (D.C.) 193 F. 728. The issue is one of venue, process, and objections to jurisdiction based thereon.

While aliens are not within that provision of the statutes which prohibits bringing suit in any federal court save that in the district whereof defendant is an inhabitant, so far as suits against aliens are concerned, they are within it so far as suits by aliens are concerned. That is, an alien may be sued wherever valid service of process may be made on him, but he can sue a citizen only in the district whereof the latter is an inhabitant.

The statutes also provide that, when jurisdiction is founded 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. This does not apply to aliens. In re Hohorst, 150 U.S. 660, 14 Sup.Ct. 221, 37 L.Ed. 1211; Railway Co. v. Gonzales, 151 U.S. 507, 14 Sup.Ct. 401, 38 L.Ed. 248. In any such case objections to suit in the wrong district may be waived by defendant, or by plaintiff on removal.

By reason of the statutes aforesaid, it is settled law that a case that could not be brought and maintained in a federal court against defendant's objections, cannot be removed and maintained therein against plaintiff's objections. In re Moore, 209 U.S. 506, 28 Sup.Ct. 585, 52 L.Ed. 904, 14 Ann.Cas. 1164.

Neither party hereto being citizens or residents of Montana, and plaintiffs objecting to this court's jurisdiction over them, it is clear in view of the law aforesaid that the case cannot be maintained herein. But defendant contends that to this rule of law there is an exception when an alien or nonresident citizen brings suit in a state court against a nonresident citizen, and in support thereof relies upon the reasoning and conclusions of the cases aforesaid cited by it. Said cases are 'all fours' with this at bar (save that Bogue v. Railway Co., supra, involves merely diverse citizenship and not alienage), as are those cited by plaintiffs, but with all due respect for the learned judges that determined the former I dissent therefrom, and concur with those who determined the latter. The argument in behalf of the exception claimed to said rule of law is, so far as alienage is concerned, that otherwise an alien is favored with a choice, denied to a citizen, of a forum, and that but for said exception a citizen is precluded from removal of any suit brought by an alien against him in a state court anywhere. To this it may be answered that like choice denied to defendants of a forum is the right of citizen plaintiffs in some causes within federal jurisdiction by reason of diverse citizenship, that Congress saw no necessity for removal in cases like this at bar and so made no provision therefor in the removal act, and that there is no right of removal save where given by said act. The exception claimed is not to be found in the removal act, and all attempts to establish it by construction are due to the supposed exigencies of the situation created by alien or nonresident litigants.

The reason and object of the removal acts in conferring upon the federal courts 'jurisdiction of controversies between citizens of different states of the Union, or between citizens of one of the states and aliens, was to secure a tribunal presumed to be more impartial than a court of the state in which one of the litigants resides. ' Steamship Co. v. Kane, 170 U.S. 111, 18 Sup.Ct....