Illinois Cent. R. Co. v. Whitworth

• Decision Date: 24 March 1903
• Citation: 115 Ky. 286,73 S.W. 766
• Parties: ILLINOIS CENT. R. CO. v. WHITWORTH.
• Court: Kentucky Court of Appeals

73 S.W. 766

115 Ky. 286

ILLINOIS CENT. R. CO. v. WHITWORTH.

Court of Appeals of Kentucky.

March 24, 1903

"To be officially reported."

On rehearing. Former opinion withdrawn, and judgment below reversed.

For Dissenting Opinion see 75 S.W. 849

BURNAM C.J.

In the petition for rehearing in this case our attention is called to the fact that in the decision heretofore rendered in 70 S.W. 657, we failed to pass upon the validity of the motion of the defendant to transfer the case from the McCracken circuit court to the United States Circuit Court for the Western District of Kentucky. In response to this contention it is proper for us to say that we did not overlook the fact that this question was presented by the record, but, as counsel for appellant in their brief did not rely upon this alleged error of the circuit court as a ground for reversal but were content to rest their contention wholly upon the merits of the case, we concluded that they did not desire upon this appeal to rely upon that ground, but it seems from their petition for rehearing that we have misconstrued the purpose of counsel and they now insist upon a decision upon that point. The plaintiff, a citizen of Tennessee, as he alleges in his petition, brought this suit in the McCracken circuit court against the defendant, whom he alleges is a citizen of Illinois, to recover a sum in excess of $2,000. The defendant tendered and filed its petition and bond for removal to the United States Circuit Court for the Western District of Kentucky upon the ground of diverse citizenship, but the McCracken circuit court decided that no ground for removal existed, and thereupon the defendant, under protest answered, and made defense. The trial resulted in a verdict and judgment for the plaintiff. In the meantime a copy of the record in the McCracken circuit court was filed by the defendant in the United States Circuit Court for the Western District of Kentucky, and the plaintiff appeared in that court, and asked that it be remanded to the state court for trial, basing its claim to this relief upon the provision of section 1 of the act of August 13, 1888, 25 Stat. 433 [U. S. Comp. St. 1901, p. 508]. The motion to remand in the federal court was overruled.

Article 3, § 2, of the Constitution of the United States, defines the extent of judicial power which may be conferred upon courts of the United States as follows: "The judicial power shall extend to all cases in law or equity arising under this Constitution, the laws of the United States, and treaties made, or which shall be made, under their authority; to all cases affecting ambassadors, or other public ministers and consuls; to all cases of admiralty or maritime jurisdiction to controversies to which the United States shall be a party; to controversies between different states, between a state and citizens of another state, between citizens of different states, between citizens of the same state claiming lands under grants of different states, and between a state, or the citizens thereof, and foreign states, citizens or subjects." The enforcement of this provision of the federal Constitution was for a very long time controlled by Judiciary Act 1789, § 11, 1 Stat. 78. But other acts were passed from time to time by the Congress of the United States conferring upon the Circuit Courts of the United States various special jurisdictions, but the present general right to remove a suit from a state to a Circuit Court of the United States is governed by section 2 of the act of 1875, as amended by the acts of 1887 and 1888 [U. S. Comp. St. 1901, p. 509]. An interesting history of these various acts is found in "Moore on Removal of Causes." The second section of the act of 1875, as amended by the act of 1887, reads as follows: "When in any suit mentioned in this section there shall be a controversy, which is wholly between citizens of different states and which can be fully determined between them, then either one of some of the defendants, actually interested in such controversy, may remove such controversy to the Circuit Court of the United States for the proper district." And section 1 of the act of August 13, 1888 (25 Stat. 434 [U. S. Comp. St. 1901, p. 508]), amending the act of 1875, provides: "The District and Circuit Courts of the United States shall have original cognizance, concurrent with the courts of the several states, over all suits of a civil nature at common law or in equity, *** 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 value of" $2,000. And the act further provides that 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 when the jurisdiction is founded only on the fact that the action is between citizens of different states, suits shall be brought only in the district of the residence of either the plaintiff or the defendant. The second section of the same act (25 Stat. 435 [U. S. Comp. St. 1901, p. 509]), provides that: "Any suits 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 of the defendant or defendants therein being non-residents of this state." As neither of the parties to this action are citizens or inhabitants of Kentucky, it is contended, under section 2, that the...