Hubbard v. Chicago, M. & St. P. Ry. Co.

• Decision Date: 24 February 1910
• Citation: 176 F. 994
• Parties: HUBBARD v. CHICAGO, M. & ST. P. RY. CO.
• Court: U.S. District Court — District of Minnesota

176 F. 994

HUBBARD v. CHICAGO, M. & ST. P. RY. CO.

United States Circuit Court, D. Minnesota.

February 24, 1910

Barton & Kay, for plaintiff.

F. W Root and N. J. Wilcox, for defendant.

WILLARD District Judge.

The plaintiff brought this action in the district court of Ramsey county, in the state of Minnesota, to recover the sum of $35,500 for personal injuries suffered by him by reason, as he alleged, of the negligence of the defendant. The complaint stated that both the plaintiff and the defendant were citizens of the state of Wisconsin, and alleged facts which would seem to bring the case within the provisions of the act of Congress of April 22, 1908, c. 149, 35 Stat. 65 (U.S Comp. St. Supp. 1909, p. 1171)-- the employer's liability act. The questions now to be decided are presented by a motion to remand.

Section 1 of the Act of March 3, 1887, c. 373, 24 Stat. 552, relating to the jurisdiction of the Circuit Courts, as amended by the Act of August 13, 1888, c. 866, 25 Stat. 433 (U.S. Comp. St. 1901, p. 508), provides in part 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. * * * 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 of the act provides in part as follows:

'That any suit of a civil nature, at law or in equity, arising under the Constitution or laws of the United States, * * * 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.'

In this last section the sentence 'of which the Circuit Courts of the United States are given original jurisdiction' refers to the general grant of jurisdiction contained in section 1, and not to the particular court in which the action must be brought according to the terms of the last part of said section. Mexican National R.R. Co. v. Davidson, 157 U.S. 201, 208, 15 Sup.Ct. 563, 39 L.Ed. 672. But those decisions of the Supreme Court which say that a case cannot be removed to the Circuit Court, unless it could have been commenced therein, refer to the particular Circuit Court to which removal is sought. In Matter of Dunn, 212 U.S. 374, 384, 29 Sup.Ct. 299, 301, 53 L.Ed. 558, it is said:

'The right to remove under the statute depends upon whether it could originally have been brought in the Circuit Court of the United States. Traction Co. v. Mining Co., 196 U.S. 239, 245 (25 Sup.Ct. 251, 49 L.Ed. 462); Cochran, etc., v. Montgomery County, 199 U.S. 260 (26 Sup.Ct. 58, 50 L.Ed. 182). The question is then whether the United States Circuit Court for the proper district (Northern district of Texas) would have had jurisdiction of a suit commenced in that district by the plaintiffs against the railway company and the two individual defendants. ' In re Winn, 213 U.S. 458, 464, 29 Sup.Ct. 515, 53 L.Ed. 873.

This case having been commenced in the district court for Ramsey county in the state of Minnesota, the proper district within the meaning of the provision of section 2 above referred to was the district of Minnesota, and that division therein in which the county of Ramsey is situated. Act of March 3, 1887, c. 373, Sec. 3, 18 Stat. 471, as amended by Act of March 3, 1888, c. 866, 25 Stat. 433 (U.S. Comp. St. 1901, p. 511); Act of Congress April 26, 1890, c. 167, 26 Stat. 72 (U.S. Comp. St. 1901, p. 374), relating to the district of Minnesota. If it could not be removed to the Circuit Court for this district it could not be removed at all. In re State Insurance Co., 18 Wall. 417, 21 L.Ed. 904. The jurisdiction of the national courts depends in this case not upon diverse citizenship, but upon the claim that it is a suit arising under a law of the United States, namely, the Employer's Liability Act of 1908. By the terms of section 1 of the Act of 1887, if the action were to be brought in a Circuit Court of the United States, it could only be brought in the Circuit Court of the state of Wisconsin, in the district where the defendant resides. It could not have been brought originally in the Circuit Court for the district of Minnesota. Macon Grocery Co. et al. v. Atlantic Coast Line R.R. Co. et al. (January 17, 1910) 215 U.S. 501, 30 Sup.Ct. 184, 54 L.Ed. . . . . And when brought in a court of the state of Minnesota it could not be removed to the Circuit Court for the district of Minnesota. Ex parte Wisner, 203 U.S. 449, 27 Sup.Ct. 150, 51 L.Ed. 264; dissenting opinion of Harlan, J., in the case of Macon Grocery Co. v. Atlantic Coast Line R.R. Co., above cited.

If the plaintiff had, without in any way recognizing the jurisdiction of the Circuit Court, appeared specially therein and moved to remand the case that motion would have been granted. The defendant, however, claims that the plaintiff has waived his right to remand and has consented to try the case in this court. It is settled that, where there is in fact a controversy between citizens of different states, the parties can confer jurisdiction upon a particular Circuit Court, although that is not the Circuit Court of the residence of either the plaintiff or the defendant. Western Loan Co. v. Butte & Boston Mining Co., 210 U.S. 368, 28 Sup.Ct. 720, 52 L.Ed. 1101. In that case it was held that the defendant company waived the objection that it had been sued in the wrong district.

It has also been held that where a defendant has been sued in a state court, in a district in which he does not reside, by removing the case into the United States Circuit Court sitting in that district he waives his right to have the case brought in the district of his residence. In re Moore, 209 U.S. 490, 28 Sup.Ct. 585, 706, 52 L.Ed. 904. It was also held in that case that the plaintiff having followed the suit into the Circuit Court, and having there filed an amended petition and signed a stipulation giving time to the defendant to answer, and having entered into successive stipulations for a continuance of the trial in that court, had thereby consented to accept its jurisdiction. The same thing was also held in the case of Kreigh v Westinghouse & Co., ...