Harding v. Standard Oil Co.

• Citation: 170 F. 651
• Decision Date: 15 May 1909
• Docket Number: 28,865.
• Parties: HARDING v. STANDARD OIL CO. et al.
• Court: U.S. District Court — Northern District of Illinois

170 F. 651

HARDING v. STANDARD OIL CO. et al.

No. 28,865.

United States Circuit Court, N.D. Illinois, Eastern Division.

May 15, 1909

George F. Harding and Wm. J. Ammen, for complainant.

Mayer Meyer & Austrian and Calhoun, Lyford & Sheehan, for Corn Products Mfg. Co.

SANBORN District Judge.

Motion for leave to amend original removal petition of Corn Products Company. The suit was commenced October 23, 1907, in the superior court of Cook county, Ill and an amended bill was filed October 25, 1907. On November 5, 1907, the Corn Products Company filed its petition for removal on the ground of separable controversy. On the same day all the other defendants, corporate and individual, filed papers in the state court consenting to and petitioning for the removal. The removal petition, following the original and amended bills, alleged that complainant was a citizen of California the four corporation defendants citizens of New Jersey, and making no allegation respecting the citizenship of the individual defendants; but stating that five of such defendants were not at the filing of the bill and petition either directors or officers of either of the corporate defendants. The petition stated that said suit presented a separable controversy between complainant and petitioner, and that the matter in dispute 'exceeds, exclusive of interest and costs, the sum or value of two thousand dollars.'

The nature of the separable controversy is not stated, and the individual defendants are assumed to be only nominal defendants. It seems to have been also assumed that the nature of the separable controversy sufficiently appears from the amended bill.

On the same day, November 5, 1907, notice was given to complainant's solicitor that the petition would be presented to Judge Ball of the superior court. On November 6 1907, this court made an order directing the filing in this court of a transcript of the record of the state court and restraining the further prosecution of the suit by the complainant in the state court; and on the same day the removing defendant filed in this court, in support of and supplemental to the petition for removal, a verified statement alleging the citizenship of the individual defendants, showing that four of the defendants were, at the commencement of the suit, and still are, citizens of Illinois, and that the other individual defendants were citizens of states other than California and Illinois.

Before the proceedings above mentioned a similar suit had been filed in the state court by the Chicago Real Estate Loan & Trust Company against the Corn Products Company and others for the same relief as prayed in the Harding bill. That suit was removed to this court, and an injunction issued restraining complainant from farther prosecuting the case in the state court. It was claimed by defendants that the bringing of the second suit was a violation of said injunction, and on contempt proceedings brought against Harding and others this court, by order of December 13, 1907, decided that they were in contempt, but they were discharged, but restrained from the further prosecution of the Harding suit. This injunction was issued on the theory that the Harding suit was really the same as the loan and trust company's suit.

After the removal of the Harding suit, and in the fall of 1907, Harding desired to make a motion to remand that suit; and on December 23, 1907, filed a motion to remand on eight grounds, being no separable controversy, no removable cause shown, no diverse citizenship, no statement of the particulars of the alleged separable controversy, that the Standard Oil Company did not unite in the petition (this is a mistake), and that the removal order is unlawful. The fifth clause of the motion to remand is as follows:

'Because the complainant in said cause was, at the time of the commencement of said suit and at the time of the presenting of said petition for removal therein to said superior court, and of the filing of the same therein, a citizen of the state of California, and a citizen of no other state, and at the times aforesaid was not a resident of the aforesaid district; and Charles L. Glass, Joy Morton, William J. Calhoun, and H. G. Herget, defendants in said cause, were, respectively, at the times aforesaid, citizens and residents of the state of Illinois, and the other defendants, respectively, were not, at the times aforesaid, citizens of said state of Illinois, or residents of said district, but were, at said times, citizens of states other than said state of Illinois, and not residents, respectively, of said district.'

It is claimed by complainant that this motion to remand is based upon Ex parte Wisner, 203 U.S. 449, 27 Sup.Ct. 150, 51 L.Ed. 264.

This is not clear, and the motion is quite different from the one filed in the Wisner Case. This is not important, except that the motion does not distinctly apprise defendants that the Wisner Case was relied on.

The Circuit Court regarded the motion to remand as unimportant because of the pendency of the prior case of the loan and trust company, and would not permit it to be brought on because of the injunction in the first case. Meanwhile, however, the loan and trust company moved for leave to dismiss the first suit. Leave was denied; but on appeal from the injunction order it was held by the Circuit Court of Appeals that it should have been granted. Harding v. Corn Products Co. (Jan. 19, 1909) 168 F. 658. The injunction order was reversed, and the bill ordered dismissed.

With the bill in the first suit dismissed, the Harding Case became the only one pending, and the importance of the removal and the motion to remand, having been before that of little importance, at once became matters of great importance and concern to the respective parties. In this situation, and on April 16, 1909, the Corn Products Company applied to this court for leave to amend its original petition for removal so as to allege that Harding was when the suit was commenced, and ever since had been, a citizen of Illinois. It was alleged in the petition for leave to amend that petitioner, in making its original removal petition, relied on and believed the statement of the bill that Harding was a citizen of California, and it did not discover the falsity of such statement until April 12, 1909. Complainant answered the petition, appearing specially and for the purpose only of objecting to the jurisdiction of the court, as stated in his petition to remand filed December 23, 1907; and insisting that the court has no jurisdiction, no power or authority to allow or entertain the motion to amend. Other objections are stated, and it is submitted that complainant is, and long has been, a citizen of California. It is also insisted that if the court has power to allow the amendment it should not do so, because complainant constantly insisted on the hearing of his motion to remand, but the court refused to hear him by reason of the injunction, and that if the motion could have been heard it must have resulted in the case being remanded, and, the injunction having been erroneous, complainant should not be thus prejudiced by a situation which prevented him from obtaining a hearing. But the injunction only became erroneous by reason of the refusal of this court to dismiss the first case, on motions made before the injunction order of December 13, 1907, was entered. Complainant at once appealed from that order, and nothing could be done, as a matter of course, while the appeal was pending, in respect to the motion to remand. It seems, therefore, that the motion for leave to amend should be granted, if the power of amendment exists. Defendant relies on Wilbur v. Red Jacket, etc., Co. (C.C.) 153 F. 662, a case very much like this, for its procedure in bringing its petition for leave to amend.

In regard to the question of power, it is insisted that no jurisdiction is shown by the original petition for removal, because the suit is not brought in the district of the residence of either the plaintiff or defendant; and since Harding has not consented to sue here, and has waived nothing, the case is not now removable under Ex parte Wisner and In re Moore, 209 U.S. 490, 28 Sup.Ct. 585, 706, 52 L.Ed. 904. On the other hand, it is urged that, as the original petition showed diverse citizenship, the general jurisdiction was complete, and the question is one of venue only, of the power of this particular court to proceed. The lower federal courts are hopelessly divided on this precise question, but the practice under the act of 1789 seems to have been clear.

The judiciary act of September 24, 1789, 1 Stat. 78, c. 20, Sec 11, contained the provision that no civil suit should be brought against an inhabitant of the United States in any other district than that whereof he was an inhabitant, or in which he should be found at the time of serving the writ. Under this act the question arose whether, in cases of diverse citizenship, or of an alien against a citizen, it was necessary to allege that the defendant was an inhabitant of or found within the district in which suit was brought. In Gracie v. Palmer, 8 Wheat. 699, 5 L.Ed. 719, suit was brought in the District of Pennsylvania by aliens against citizens of New York, and it did not appear that they were inhabitants of nor found in Pennsylvania. On error to the Supreme Court a motion to dismiss was made by Mr. Webster for want of jurisdiction. In overruling the motion, Chief Justice Marshall stated that the uniform construction under the clause of the act referred to had been that it was not necessary to aver on the record that the defendant was an inhabitant of or found...