In the Matter of Albertn. Moore, an Infant, by Next Friend, Petitioner. riginal, 17

• Court: United States Supreme Court
• Citation: 52 L.Ed. 904,28 S.Ct. 585,209 U.S. 490
• Docket Number: O,No. 17,17
• Parties: IN THE MATTER OF ALBERTN. MOORE, an Infant, by Next Friend, Petitioner. riginal
• Decision Date: 20 April 1908

209 U.S. 490 28 S.Ct. 585 52 L.Ed. 904 IN THE MATTER OF ALBERTN. MOORE, an Infant, by Next Friend, Petitioner. No. 17, Original. Argued and Submitted March 9, 1908. Decided April 20, 1908.

Page 491

This is an application by petitioner for a writ of mandamus to compel the circuit court of the United States for the eastern division of the eastern judicial district of Missouri to remand the case of this petitioner v. The Louisville & Nashville Railroad Company to the state court from whence it came.

The facts are these: On November 16, 1906, Albert Newton Moore, an infant, over the age of fourteen years, presented his petition to the circuit court of the city of St. Louis, Missouri, stating that he desired to institute a suit in that court against the Louisville & Nashville Railroad Company, and praying for the appointment of a next friend; whereupon George Safford, of St. Louis, was duly appointed such next friend. Thereupon a petition was filed in said state court in the name of Moore, by his next friend, against the Louisville & Nashville Railroad Company, to recover damages for personal injuries. After service of summons, but before answer was due, the railroad company filed its application for removal to the circuit court of the United States for the eastern division of the eastern judicial district of Missouri. This application for removal was based on the ground of diverse citizenship, and alleged that the plaintiff Moore was a citizen and resident of the state of Illinois; that Safford, the next friend, was a resident and citizen of the state of Missouri, and the defendant, a corporation created and existing under the laws of the state of Kentucky, and a citizen and resident of that state. The petition and bond were in due form, and the case was transferred to the United States circuit court. Thereafter, and on March 22, 1907, the plaintiff filed in that court an amended petition. On March 25, by stipulation of the parties, the defendant was given time to plead to the plaintiff's amended petition. Three or four times thereafter stipu-

Page 492

lations for continuances were entered into by the counsel for both sides. At the September term, 1907, a motion to remand, made by the plaintiff, was overruled, and a subsequent application to reconsider this ruling was also overruled. Thereupon this application for mandamus was presented.

Messrs. Shepard Barclay and Thomas T. Fauntleroy for petitioner.

[Argument of Counsel from pages 492-494 intentionally omitted]

Page 494

Messrs. Harold R. Small, P. Taylor Bryan, and Harvey L. Christie for respondent.

[Argument of Counsel from page 494 intentionally omitted]

Page 495

Mr. Justice Brewer delivered the opinion of the court:

It was held in Ex parte Wisner, 203 U. S. 449, 51 L. ed. 264, 27 Sup. Ct. Rep. 150, that——

'Under §§ 1, 2, 3, of the act of March 3, 1875 (18 Stat. at L. 470, chap. 137), as amended by the act of March 3, 1887 (24 Stat. at L. 552, chap. 373), corrected by the act of August 13, 1888 (25 Stat. at. L. 433, chap. 866, U. S. Comp. Stat. 1901, p. 508), an action commenced in a state court, by a citizen of another state, against a nonresident defendant, who is a citizen of a state other than that of the plaintiff, cannot be removed by the defendant into the circuit court of the United States.'

On the authority of this case it is contended by petitioner that as in this action none of the parties were citizens of the state of Missouri, it could not be removed by the defendant

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into the circuit court of the United States, and that, upon the failure of the United States circuit court to remand the case to the state court in which it was originally brought, mandamus from this court is an appropriate remedy. But in that casw the plaintiff never consented to accept the jurisdiction of the United States court, while in this case it is contended that both parties did so consent, and that therefore the decision in that case is not controlling.

This brings up two questions: First, whether both parties did consent to accept the jurisdiction of the United States court; and, second, if they did, what effect such consent had upon the jurisdiction of the United States court.

That the defendant consented to accept the jurisdiction of the United States court is obvious. It filed a petition for removal from the state to the United States court. No clearer expression of its acceptance of the jurisdiction of the latter court could be had. After the removal the plaintiff, instead of challenging the jurisdiction of the United States court by a motion to remand, filed an amended petition in that court, signed a stipulation giving time to the defendant to answer, and then both parties entered into successive stipulations for a continuance of the trial in that court. Thereby the plaintiff consented to accept the jurisdiction of the United States court, and was willing that his controversy with the defendant should be settled by a trial in that court. The mere filing of an amended petition was an appeal to that court for a trial upon the facts averred by him as they might be controverted by the defendant. And this, as we have seen, was followed by repeated recognitions of the jurisdiction of that court.

That a next friend may select the tribunal in which the suit shall be brought is clear. While he may do nothing prejudicial to the substantial rights of the minor, yet the mere selection of one out of many tribunals having jurisdiction cannot be considered as an act to the latter's prejudice. Certainly the election to accept the jurisdiction of a court of the United States is not an act prejudicial to substantial rights. In Kings-

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bury v. Buckner, 134 U. S. 650, 33 L. ed. 1047, 10 Sup. Ct. Rep. 638, where the next friend consented that a case on a writ of error might be heard in some other grand division of the supreme court of Illinois than the one in which it was decided, and at a term of that court earlier than such writ of error could ordinarily be heard, and also waived the execution of an appeal bond by the opposite party, it was held that the infant was bound by such action, the court saying (p. 680):

'Now it is contended that the supreme court of the state, sitting in the central grand division, could not, except by consent, entertain jurisdiction of those appeals, and that the next friend and guardian ad litem was incapable, in law, of giving such consent. It is undoubtedly the rule in Illinois, as elsewhere, that a next friend or guardian ad litem cannot, by admissions or stipulations, surrender the rights of the infant. The court, whose duty it is to protect the interests of the infant, should see to it that they are not bargained away by those assuming or appointed to represent him. But this rule does not prevent a guardian ad litem or prochein amy from assenting to such arrangements as will facilitate the determination of the case in which the rights of the infant are involved.'

Again, in Thompson v. Maxwell Land Grant & R. Co. 168 U. S. 451, 42 L. ed. 539, 18 Sup. Ct. Rep. 121, where the question was whether the infant was bound by a consent decree, it was said (462):

'That infants are bound by a consent decree is affirmed by the authorities, and this notwithstanding that it does not appear that a prior inquiry was made by the court as to whether it was for their benefit. In 1 Dan. Ch. Pl. & Pr. 163, it is said: 'Although the court usually will not, where infants are concerned, make a decree by consent, wirhout an inquiry whether it is for their benefit, yet, when once a decree has been pronounced without that previous step, it is considered as of the same authority as if such an inquiry had been directed, and a certificate thereupon made that it would be for their benefit.'

* * * * *

'In Walsh v. Walsh, 116 Mass. 377, 17 Am. Rep. 162, a decree had

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been entered as follows: 'And the plaintiff and the defendants, . . . Thomas Keyes, . . . and also in his capacity of guardian ad litem of Bridget Walsh and William Walsh, consenting to the following decree: And this court being satisfied upon the representations of counsel that the decree is fit and proper to be made as against the said Bridget and William, it is thereupon ordered and adjudged and decreed,' etc.

'On a bill of review, filed by the minors, this decree was challenged, among other reasons, on the ground that it appeared to have been made by consent of their guardian ad litem and upon the representations of counsel without proof. The court decided against the contention, and speaking in reference thereto, through Mr. Chief Justice Gray, said:

"An infant is ordinarily bound by acts done in good faith by his solicitor or counsel in the course of the suit, to the same extent as a person of full age. Tillotson v. Hargrave, 3 Madd. Ch. 494; Levy v. Levy, 3 Madd. Ch. 245. And a compromise, appearing to the court to be for the benefit of an infant, will be confirmed without a reference to a master; and, if sanctioned by the court, cannot be afterwards set aside except for fraud. Lippiat v. Holley, 1 Beav. 423; Brooke v. Mostyn, 33 Beav. 457; and 2 De G. J. & S. 373.

"If the court does pronounce a decree against an infant by consent, and without inquiry whether it will be for his benefit, he is as much bound by the decree as if there had been a reference to a master and a report by him that it was for the benefit of the infant. Wall v. Bushby, 1 Bro. Ch. 484; I Dan. Ch. Pl. & Pr. 164. The case falls within the general rule, that a decree made by consent of counsel, without fraud or collusion, cannot be set aside by rehearing, appeal, or review. Webb v. Webb, 3 Swanst. 658; Harrision v. Rumsey, 2 Ves. Sr. 488; Bradish v. Gee, Ambl. 229, s. c. 1 Ld. Kenyon, 73; Downing v. Cage, 1 Eq. Cas. Abr. 165; Toder v. Sansam, 1 Bro. P. C. 2d ed. 468; French v. Shotwell, 5 Johns. Ch. 555"

This also seems to be the settled law of...