In re Cilley

• Decision Date: 11 December 1893
• Docket Number: 400.
• Citation: 58 F. 977
• Parties: In re CILLEY.
• Court: U.S. District Court — District of New Hampshire

58 F. 977

In re CILLEY.

No. 400.

United States Circuit Court, D. New Hampshire.

December 11, 1893

Statement by ALDRICH, District Judge:

This cause was before the circuit court at the May term, 1892 (COLT, Circuit Judge, and ALDRICH, District Judge, sitting) upon a rehearing of a motion to remand to the state court which had previously been denied. The removal was on the ground of diverse citizenship, and within the limit in which a party may remove a proper cause as a matter of right, and was subsequent to the act of 1887. The proceeding removed was a probate appeal from the decree of the probate court in the county of Merrimack, and state of New Hampshire, allowing and establishing a certain instrument as the last will and testament of one Matilda P. Jenness, wherein the contestant (which is the petitioner) alleged undue influence as ground of appeal, and issues of fact thereon were framed for the jury in this court; and upon reargument and reconsideration the cause was remanded, the court, at the August term announcing its conclusion orally, in substance, as follows (COLT, Circuit Judge, and ALDRICH, District Judge, concurring:)

'The general question is whether the decree of the probate court admitting the will to probate shall be affirmed, and the immediate question comes, upon a rehearing ordered by the court, under the motion to remand on the ground that such proceeding was not removable, and that this court therefore has no jurisdiction. Upon the former argument of the question involved in the motion to remand, which was denied, due consideration was not given to the effect of section 2 of the acts of March 3, 1887, and August 13, 1888. Upon reargument and reconsideration, we are of opinion that the acts referred to are restrictive in respect to the right of removal, and that section 2, under reasonable construction, operates to narrow or withdraw such right in certain classes of cases. Judicial decision since 1887 sustains this view. If we were to assume, for the purpose of determining this question upon reargument, that prior to March 3, 1887, proceedings to establish wills were removable after reaching such a stage as to be termed a 'suit' or 'controversy' within the meaning of the older statutes, we should still be of opinion that such right did not exist in this cause at the time of the removal, for the reason that the effect of section 2 of the acts referred to was to withdraw such right in this class of cases. In determining this question it is not necessary at this time, and would not be useful, to refer to reasons which prompted this restrictive legislation. It is evident, however, if the right of removal ever existed in will cases of this character, that congress, upon such considerations of public policy, convenience, economy, and a proper administration of justice in such affairs as seemed to it controlling, intended to withdraw such right, and leave this class of probate business to the courts of the states; and we have, therefore, no hesitation in accepting such legislation as intended to settle this mooted question of jurisdiction against the right of removal, at least in proceedings of this character.'

All prior orders denying the motion to remand were vacated, the motion was granted, and the cause remanded to the state court. At the time this conclusion was announced the court intimated its purpose to file an opinion stating its reasons more at length. The remand was distinctly upon the ground that the federal court had no jurisdiction of the subject-matter involved.

William L. Foster and Harvey D. Hadlock, for petitioner.

Streeter, Walker & Chase and Bingham & Mitchell, for executor.

Before COLT, Circuit Judge, and ALDRICH, District Judge.

ALDRICH District Judge, (after stating the facts.)

The party aggrieved is now before the court upon petition for removal upon the ground of local prejudice, and, the former remand being for want of jurisdiction of the subject-matter, presents no new question. But, in view of the magnitude of the case, the practical importance of the question, and the fact that learned counsel have pursued the supposed right of removal with unusual earnestness and apparent confidence, we have thought best to carefully re-examine the jurisdictional question in the light of further argument, and to state our reasons at length.

We will first dispose of the position taken by the petitioner on reargument, that the right of removal exists under article 3, § 2, of the constitution of the United States, and cannot, therefore, be abridged by congress or denied by the court. This position is not tenable. The constitution declares the lines within which congress may confer jurisdiction, but the ground and limit of actual jurisdiction to be exercised by the courts are to be found in the acts of congress, and not in the constitution. It is not necessary to inquire as to the extreme limit of the constitutional scope of judicial power. Within its scope, whatever that may be, congress may confer jurisdiction, and so much of the constitutional grant of judicial power as is not bestowed upon the federal courts by legislative provision remains dormant. In other words, congress is to define and describe to what extent the judicial power is to be exercised by the federal courts. McIntire v. Wood, 7 Cranch, 504; Kendall v. U. S., 12 Pet. 524, 616; Cary v. Curtis, 3 How. 236, 245; Bank v. Roberts, 4 Conn. 323; Bank of U.S. v. Northumberland Bank, Id. 333; Turner v. Bank, 4 Dall. 10; Ex parte Cabrera, 1 Wash. C. C. 235; Sheldon v. Sill, 8 How. 441, 449; U.S. v. Haynes, 29 F. 691, 696. There is authority to the point that the purpose of the act of 1875 was to make the jurisdiction of the circuit court coextensive with the constitutional grant of judicial power, except in cases in which the supreme court had exclusive jurisdiction, (Insurance Co. v. Champlin, 21 F. 85, 89; Sawyer v. Parish of Concordia, 12 F. 754;) but, however this may be, such was not the purpose of the acts of 1887-88.

There is a wide difference between the removal provisions of the act of 1875 and the acts of 1887-88, as will be seen upon examination. The act of March 3, 1875, provided, through section 1:

'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,' etc.

Section 2 provided:

'That in any suit of a civil nature, at law or in equity, now pending or hereafter brought in any state court, where the matter in dispute exceeds, etc. * * * or in which there shall be a controversy between citizens of different states, * * * either party may remove said suit into the circuit court of the United States for the proper district. And when in any suit mentioned in this section there shall be a controversy which is wholly between citizens of different states,' etc.

It will be observed that the second section, which authorizes removal, is broader than the first section, which grants original cognizance upon the circuit courts; and herein lies the difference between the acts of 1875 and 1887. It is manifest that under the act of 1875 suits or controversies, not originally cognizable in the circuit court, might ripen into a suit removable under section 2. It will be seen that in describing suits of a civil nature at law or in equity, removable under section 2, there is no reference to the preceding section, and there is, therefore, in section 2 no reference to the suits of a civil nature, at common law or in equity, described in section 1. In other words, under section 2 there is no reference to common-law suits or proceedings in equity. And it will be further seen that in the last part of section 2 the provision is, 'When in any suit mentioned in this section there shall be a controversy,' etc. The removability, therefore, under the act of 1875, was to be determined upon the force of section 2, without any reference to the jurisdictional grant of section 1, or to the common-law phrase used therein. Under this section there was strong ground for holding that original jurisdiction was not the test of removability, and that any controversy between citizens of different states, which had taken the form of a suit of a civil nature at law or in equity, might be removed; and the weight of authority unquestionably sustains this view. But the present jurisdiction of this court depends upon the acts of 1887-88, and not upon the act of 1875. We must, therefore, look to the acts of 1887-88 for the purpose of determining whether jurisdiction exists to administer justice in a probate proceeding of this character.

Sections 1 of the acts of 1875 and 1887-88 are, in substance, the same; but, as has been observed, there is a wide difference between section 2 of the acts of 1887-88, which authorizes removals, and section 2 of the act of 1875. Section 2 of the acts of 1887-88 first provides:

'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,' may be removed.

It next provides:

'That 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 the state.' It would seem that the first two clauses of section 2 contain all the

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