Hill v. Woodland Amusement Co.

• Decision Date: 10 January 1908
• Citation: 158 F. 530
• Parties: HILL v. WOODLAND AMUSEMENT CO.
• Court: U.S. District Court — District of Delaware

158 F. 530

HILL v. WOODLAND AMUSEMENT CO.

United States Circuit Court, D. Delaware.

January 10, 1908

(Syllabus by the Court.)

An action pending in a state court of competent jurisdiction in Delaware, where the matter in dispute exceeds, exclusive of interest and costs, the sum or value of $2,000, brought by a citizen of Pennsylvania against a citizen and resident of New Jersey, is not removable to the Circuit Court of the United States for Delaware; and the doctrine of waiver is inapplicable to the case.

Josiah O. Wolcott, for plaintiff.

Anthony Higgins and Horace Greeley Eastburn, for defendant.

BRADFORD District Judge.

James Hill, Administrator of Samuel P.Hill, deceased, and a citizen of Pennsylvania, brought an action on the case in the superior court of Delaware for Kent County, against the Woodland Amusement Company, a corporation and citizen of New Jersey, for the recovery of damages laid at $20,000 for the death of the plaintiff's intestate through alleged negligence on the part of the defendant in the operation of certain machinery connected with a toboggan slide. The defendant, after declaration filed, having seasonably applied for the removal of the cause from the superior court to this court, an order for such removal was made by the superior court April 22, 1907. The defendant put in its pleas July 1 1907. The plaintiff through counsel entered a general appearance in this court July 10, 1907, and on the same day replied to two of the pleas and demanded that the remaining plea be drawn out before replication to it. At this stage of the pleadings the plaintiff presented two motions to this court; one, that leave be granted him to withdraw his general appearance and his replications, and to appear specially for the purpose of moving that the case be remanded, and the other, that the case be remanded as one not properly within the jurisdiction of this court. It appears from the record and is admitted, that the plaintiff was at the time of the commencement of the action and still is a citizen and resident of Pennsylvania, and that the defendant was at that time and still is a citizen and resident of New Jersey. Neither of the parties had or has a residence in Delaware. Section 1, art. 3, of the Constitution, provides that 'The judicial power of the United States, shall be vested in one Supreme Court, and in such inferior courts as the Congress may from time to time ordain and establish'; and section 2 of the same article provides that such judicial power shall extend to controversies 'between citizens of different States.' Pursuant to this grant of power Congress, having created the circuit courts of the United States, provided, among other things, by section 1 of the act of March 3, 1887, c. 373, 24 Stat. 552, as amended by the act of August 13, 1888, c. 866, 25 Stat. 433 (U.S. Comp. St. 1901, p. 508), as follows:

'That the circuit courts of the United States shall have original cognizance, concurrent with the courts of the several States, of all suits of a civil nature, at common law or in equity, where the matter in dispute exceeds, exclusive of interest and costs, the sum or value of two thousand dollars, and arising under the Constitution or laws of the United States, or treaties made, or which shall be made, under their authority, or in which controversy the United States are plaintiffs or petitioners, or in which there shall be a controversy between citizens of different States, in which the matter in dispute exceeds, exclusive of interest and costs, the sum or value aforesaid. * * * But no person shall be arrested in one district for trial in another in any civil action before a circuit or district court; and no civil suit shall be brought before either of said courts against any person by any original process or proceeding in any other district than that whereof he is an inhabitant, 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.'

Section 2 (U.S. Comp. St. 1901, p. 509), among other things, provides as follows:

'That any suit of a civil nature, at law or in equity, arising under the Constitution or laws of the United States, or treaties made, or which shall be made, under their authority, of which the circuit courts of the United States are given original jurisdiction by the preceding section, which may now be pending, or which may hereafter be brought, in any State court, may be removed by the defendant or defendants therein to the circuit court of the United States for the proper district. Any other suit of a civil nature, at law or in equity, of which the circuit courts of the United States are given jurisdiction by the preceding section, and which are now pending, or which may hereafter be brought, in any State court, may be removed into the circuit court of the United States for the proper district by the defendant or defendants therein, being non-residents of that state.'

Section 3 provides for the removal of a suit, where jurisdiction is founded only on the fact that the action is between citizens of different states, into 'the circuit court to be held in the district where such suit is pending.'

Before directly and specifically dealing with the vital question whether under the circumstances disclosed by the record this court is 'the circuit court of the United States for the proper district,' within the meaning of section 2 of the act, and as such has jurisdiction of this case through the removal proceedings resorted to, it may be important briefly to consider the provisions of section 1. That section contains a grant of general jurisdiction, concurrent with that of the state courts, over controversies between citizens of different states, involving the jurisdictional amount. It is true that it declares that '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. ' But, notwithstanding the strength of the language of this prohibition, it is conclusively settled by the authorities that a circuit court may have and exercise full jurisdiction in an action between citizens of different states, although held in a district in which neither of the parties resides. The mere fact that a non-resident plaintiff brings his action against a non-resident defendant does not exclude the case from the jurisdiction of the court. Were it otherwise, the writ employed for the commencement of the action would be, not voidable, but void-- an absolute nullity, to which no waiver or consent could impart force or vitality. But while the suit is validly brought, although neither of the parties resides in the district, it is voidable, at the instance of the defendant, on objection taken in limine by reason of such non-residence. Under judicial construction the seasonable taking of such objection by the defendant operates as a condition subsequent to and precludes the further exercise of jurisdiction which validly attached to the suit at its inception. The prohibition is treated as a provision which, while not per se defeating or affecting the jurisdiction of the court, extends to defendants a privilege or immunity they may or may not at their election waive. If the defendant seasonably insists on such privilege or immunity the court is without power further to exercise the jurisdiction originally attaching to the case. But if the defendant does not so insist, the court rightfully proceeds in the exercise of its jurisdiction, wholly unaffected by the non-residence in the district of either of the parties to the suit. But 'where the jurisdiction is founded only on the fact that the action is between citizens of different States,' and where neither of the parties resides in the district where the suit was brought, has the suit been brought in the 'proper district'? On principle and wholly aside from the authorities I think not. Section 1, as above stated, declares in terms that where jurisdiction is so founded 'suit shall be brought only in the district of the residence of either the plaintiff or the defendant,' and this prohibition against bringing suit elsewhere per se renders the action defeasible. This inherent vice in the action is wholly based upon and exclusively grows out of bringing the action in a district where by reason of the fact that neither of the parties is a resident the suit is necessarily defeasible even if not defeated. To declare that such a district is the 'proper district' for the suit would involve a wide departure from the natural, common and obvious meaning of the phrase.

Section 2 provides in effect that controversies of a civil nature between citizens of different states involving the requisite jurisdictional amount, pending 'in any State court, may be removed into the circuit court of the United States for...