In re Stuart

• Decision Date: 04 August 1956
• Docket Number: Civ. A. No. 2920.
• Citation: 143 F. Supp. 772
• Parties: Matter of Ernest E. STUART, Alleged Mental Incompetent.
• Court: U.S. District Court — Western District of Michigan

143 F. Supp. 772

Matter of Ernest E. STUART, Alleged Mental Incompetent.

Civ. A. No. 2920.

United States District Court W. D. Michigan, S. D.

August 4, 1956.

Eric V. Brown, Kalamazoo, Mich., for petitioner Jerry Pleyte.

Charles A. Pratt, Kalamazoo, Mich., for alleged mental incompetent.

STARR, Chief Judge.

Ernest E. Stuart, alleged mental incompetent, has filed a petition for the removal to this Federal court of the above proceedings now pending in the circuit court of Kalamazoo county, Michigan.

From the petition for removal and certified copies of proceedings in the probate court and circuit court of Kalamazoo county, it appears that on April 7, 1955, one Jerry Pleyte filed a petition in the probate court alleging that said Ernest E. Stuart was mentally incompetent and asking that Pleyte's attorney, Eric V. Brown, or some other suitable person be appointed as his guardian. It appears that at the conclusion of a hearing in probate court Pleyte's petition was denied, and that he appealed from such denial to the circuit court. It further appears that upon Pleyte's request the circuit court on February 14, 1956, entered an order appointing two psychiatrists to examine Stuart as to his alleged mental incompetency. At this point in the circuit-court proceedings Stuart filed his petition for the removal of the action to this court. He bases his petition for removal on the ground that the order of the circuit court compelling him to submit to an examination by two psychiatrists as to his mental competency, was without authority of law, and was in violation of his constitutional rights under the privileges-and-immunities provision and the due-process and equal-protection provisions of the Fourteenth Amendment. Pleyte has filed a motion to dismiss Stuart's petition for removal on the ground that there has been no violation of his constitutional rights, and that this Federal court is without jurisdiction of the matter. In his petition for removal Stuart alleges in part:

"Your petitioner further shows that the circuit court for the county of Kalamazoo, Michigan, did on February 14, 1956, prior to a hearing on the merits of the matter herein, issue an order which compels the petitioner herein to submit involuntarily to an examination by two psychiatrists for their determination of the mental capacity of your petitioner. Your petitioner herein submits that such an order contravenes the constitutional guarantees of the United States Constitution, i. e. the 14th Amendment, in that there is no law or statute authorizing a judge to compel a person alleged to be mentally incompetent to submit to a physical or mental examination. That such a ruling by the court cannot and will not be applied uniformly throughout the State of Michigan because it is without the sanction of law or statute. Such a ruling contravenes the privileges and immunities clause, the equal protection clause and the due process clause of the 14th Amendment to the Constitution of the United States of America."

The question presented is whether Stuart is entitled to have the pending proceedings removed from the circuit court of Kalamazoo county to this Federal district court. 28 U.S.C.A. § 1441 provides in part:

"(a) Except as otherwise expressly provided by Act of Congress, any civil action brought in a State court of which the district courts of the United States have original jurisdiction, may be removed by the defendant or the defendants, to the district court of the United States for the district and division embracing the place where such action is pending.

"(b) Any civil action of which the district courts have original jurisdiction founded on a claim or right arising under the Constitution, treaties or laws of the United States shall be removable without regard to the citizenship or residence of the parties. Any other such action shall be removable only if none of the parties in interest properly joined and served as defendants is a citizen of the State in which such action is brought."

The proceedings in the probate court and on appeal in the circuit court involved only the issue as to Stuart's mental competency, and that issue did not involve any claim or right arising under the Constitution or laws of the United States. The petition for removal merely alleged that the circuit court order for the examination of Stuart as to his mental competency was without authority in law and was in violation of his constitutional rights. However, it is well recognized that the grounds for removal must be found in the declaration or complaint or in the initiatory proceedings in the State court. In Armstrong v. Alliance Trust Co., Limited, 5 Cir., 126 F.2d 164, 167, the court said:

"The federal question must clearly appear on the face of the declaration or complaint as an essential and integral part of the plaintiff's statement of his own case, not in anticipation of a defense that may be interposed by an adversary party. A federal question merely incidental or collateral to the main controversy is not the basis of the suit and is not enough to deprive the state court of jurisdiction upon petition for removal by the defendant."

The law has long been established that there is no common-law right to remove an action from a State court to a Federal court, and that removal may be had only as authorized by act of Congress. See 28 U.S.C.A. § 1441(a) and (b) quoted above. In 45 Am.Jur. § 3, page 810, it is stated:

"There is no common-law right of removal of a cause from a state to a United States court. The right exists only by virtue of and to the extent authorized by act of Congress. It cannot rest on the mere convenience of the parties, nor can it be exercised in any case not falling within the terms of the act authorizing it. So, a suit commenced or pending in a

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