James v. Amarillo City Light & Water Co.

• Decision Date: 07 June 1918
• Docket Number: 142.
• Citation: 251 F. 337
• Parties: JAMES v. AMARILLO CITY LIGHT & WATER CO.
• Court: U.S. District Court — Northern District of Texas

251 F. 337

JAMES v. AMARILLO CITY LIGHT & WATER CO.

No. 142.

United States District Court, N.D. Texas, Amarillo Division.

June 7, 1918

A. M Mood and Veale & Lumpkin, all of Amarillo, Tex., for plaintiff.

Thomas F. Turner, of Amarillo, Tex., for defendant.

ERVIN District Judge.

This case was brought in a state court of Texas by petitioner under a Texas statute providing that an action to recover damages may be brought in case of the death of a party caused by the wrongful act of another; this statute, authorizing one to sue for the benefit of all, but requiring all beneficiaries to be named. The petition shows that some of the beneficiaries in this cause are resident citizens of Texas, while some are resident citizens of Kentucky.

The defendant is a corporation, doing business in the state of Texas, but incorporated under the laws of the state of Delaware. The cause was removed to this court by defendant and now the plaintiffs move to remand it to the state court because all the parties plaintiff and interested in the subject-matter of this suit are not resident citizens of the state of Texas, and therefore the suit could not have been originally brought in this court.

The District Courts are, by section 24 of the Judicial Code (Act March 3, 1911, c. 231, 36 Stat. 1091 (Comp. St. 1916, Sec 991)), given jurisdiction of 'all suits of a civil nature at common law or in equity, * * * where the matter in controversy exceeds * * * three thousand dollars * * * and is between citizens of different states.'

Section 51 (Comp. Stat. Sec. 1033), provides that:

'No civil suit shall be brought in any District Court 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 the plaintiff or defendant.'

Section 28 (Comp. St. 1916, Sec. 1010) reads as follows:

'Any other suit of a civil nature, at law or in equity, of which the District Courts of the United States are given jurisdiction by this title, and which are now pending, or which may hereafter be brought in any state court, may be removed into the District Court of the United States for the proper district by the defendant or defendants therein, being nonresidents of that state.'

The provisions of these sections of the Judicial Code, while separating the jurisdictional part from the venue part and the removal part, do not in effect change the terms of the original act which was thus codified; and the question we have for determination depends on the construction of the act as codified.

The plaintiff relies upon the case of Smith v. Lyon, 133 U.S. 315, 10 Sup.Ct. 303, 33 L.Ed. 635, in which the Supreme Court holds, after citing a number of previous decisions, that where there are more than one plaintiff, and they live in different states, suit cannot be instituted in the federal court in the state of the residence of only one of these plaintiffs. The court calls attention to the fact that the language of the original act which is codified in the sections above referred to, and in which the word 'plaintiff' is used, makes no express provision as to where suits shall be brought when there are more parties plaintiff than one, and that, therefore, where the statute says, '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,' that this means that all plaintiffs must reside in the state in which suit is brought in the federal court, or such suit cannot be maintained.

This does not necessarily decide the question now before the court, because we have not now the question presented of a suit originally instituted in this court. The question here is whether a suit which has been brought in a state court can be removed to the federal court when it could not have been brought here originally. A careful study of the opinion of the Supreme Court in the Lyon Case shows that the court there confused 'jurisdiction' and 'venue,' for the court says:

'It is not readily to be conceived that the Congress of the United States, in a statute mainly designed for the purpose of restricting the jurisdiction of the Circuit Courts of the United States, using language which has been construed in a uniform manner for over 90 years by this court, intended that that language should be given a construction which would enlarge the jurisdiction of those courts, and which would be directly contrary to that heretofore placed upon it by this court.'

That this was the meaning the court placed upon the act further appears from the holding in the case of Ex parte Wisner, 203 U.S. 449, 27 Sup.Ct. 150, 51 L.Ed. 264, where the Supreme Court held (1) that mandamus would lie to compel a lower court to remand a cause which had been removed to such court from a state court; (2) that the District Courts have no jurisdiction to try a suit where neither the plaintiff nor defendant reside within the district; and (3) that a cause cannot be removed to a federal court from a state court, unless such suit might have originally been brought in such federal court.

If there had been no further decision by the Supreme Court than the Wisner Case, I would necessarily feel bound by what is said in the Wisner Case, because of the ruling in the Lyon Case and the cases which it followed, that in order to maintain a suit in the federal District Court all plaintiffs must reside in such state, and there is no question that in the instant case all the plaintiffs or parties interested in this proceeding do not reside in the state of Texas. The authority of the Wisner Case, however, has been very much affected by the fact that the same court shortly after the decision of the Wisner Case has expressly repudiated two of the propositions there laid down.

In the case of Ex parte Harding, 219 U.S. 363, 31 Sup.Ct. 324, 55 L.Ed. 252, 37 L.R.A. (N.S.) 392, the Supreme Court expressly reverses the previous ruling in the Wisner Case that mandamus would lie. In the case of Ex parte Moore, 209 U.S. 490, 28 Sup.Ct. 585, 52 L.Ed. 904, 14 Ann.Cas. 1164, and in the case of Western Loan & Savings Co. v. Butte & Boston Mining Co., 210 U.S. 368, 28 Sup.Ct. 720, 52 L.Ed. 1101, the Supreme Court expressly repudiates and reverses the ruling that the District Courts have no jurisdiction to try cases between citizens of different states other than that of the court which is hearing the case. In these two cases the distinction is correctly drawn between the venue part of the act and the jurisdictional part, and it is held that where a suit is brought by a citizen of one state in a state other than that of the residence of either plaintiff or defendant and the defendant appears generally in such cause, that the court has jurisdiction to try the case.

This brings us then to the third proposition laid down in the Wisner Case, namely, whether a suit can be removed to a court in which, because of the venue provision, it could not have originally been brought. This matter has been exhaustively considered by Judge Cochran in the case of L. & N.R.R. Co. v. W.U.T. co. (D.C.) 218 F. 91. In this case Judge Cochran collates the authorities and discusses the question in a masterly manner, and reaches the conclusion that the Wisner Case is unsound on this proposition, and declines to follow it.

The same question has already been ruled on by me in Hohenberg v. Mobile Liners, Inc., 245 F. 169. In that case I discussed the proposition, without citing or discussing any authority other than the provisions of the Judicial Code. I knew that there was much confusion and uncertainty in the authorities, and a resulting conflict on the question, and I did not undertake to state or discuss the various holdings, but attempted to analyze the provisions as to jurisdiction and venue and removal as contained in the Judicial Code and draw my conclusions from those provisions.

Going back, now, to the Wisner Case, let us see if that case shows on what the Supreme Court based its then finding that a case could not be removed to a court in which it could not have originally been instituted. After discussing the matter at some length, and citing authorities, and after deciding the first two propositions, the court then (203 U.S.on page 460, 27 Sup.Ct.on page 153, 51 L.Ed.on page 268) came to the question which I have stated as the third proposition. It then states that neither of the parties was a citizen of the state of Missouri, in which state the Wisner Case was brought, and that therefore it could not have been brought in the Circuit Court in the first instance. It then proceeds as follows:

'But it is contended that Beardsley was entitled to remove the case to the Circuit Court, and as, by his petition for removal, he waived the objection so far as he was personally concerned that he was not sued in his district, hence that the Circuit Court obtained jurisdiction over the suit. This does not follow, inasmuch as, in view of the intention of Congress by the act of 1887 to contract the jurisdiction of the Circuit Courts, and of the limitations imposed thereby, jurisdiction of the suit could not have obtained, even with the consent of both parties.'

It will be seen that the court bases its conclusion that the suit cannot be removed to a court in which it could not have been originally instituted, upon the other proposition that a court in which a case could not have been originally instituted would have no jurisdiction to try it. It is manifest that, if the court in the Wisner Case was...