Jewett v. Whitcomb

• Decision Date: 30 July 1895
• Citation: 69 F. 417
• Parties: JEWETT v. WHITCOMB et al.
• Court: U.S. District Court — Eastern District of Wisconsin

69 F. 417

JEWETT v. WHITCOMB et al.

United States Circuit Court, E.D. Wisconsin.

July 30, 1895

Hooper & Hooper, for plaintiff.

Thomas H. Gill, for defendants.

SEAMAN District Judge.

This action was commenced in the circuit court for Winnebago county upon a complaint which alleges that negligence on the part of the defendants in the operation of the railway committed to their control produced the death of plaintiff's intestate, and that the control and possession of such railway by the defendants was derived through their appointment as 'receivers of the Wisconsin Central Company and the Wisconsin Central Railroad Company (they being railroad corporations organized and existing under the laws of the state of Wisconsin) by the circuit court of the United States for the Eastern district of Wisconsin in an action then pending in said court. ' Upon petition of the receivers, duly presented, the cause was removed to this court and docketed. The plaintiff now moves to remand, and, as diverse citizenship of the parties does not exist, the question arises whether the fact that the defendants were appointed receivers by a federal court, taken with the further fact that their liability is charged solely in that capacity, confers a right of removal to federal jurisdiction.

In Railway Co. v. Cox, 145 U.S. 593, 603, 12 Sup.Ct. 905 the unanimous opinion of the supreme court is expressed through the chief justice, in respect of a similar action against receivers so appointed, in the following language:

'As jurisdiction without leave is maintainable through the act of congress, and as the receivers became such by reason of and derived their authority from, and operated the road in obedience to, the orders of the circuit court, in the exercise of its judicial powers, we hold that jurisdiction existed because the suit was one arising under the constitution and laws of the United States; and this is in harmony with previous decisions. Buck v. Colbath, 3 Wall. 334; Feibelman v. Packard, 109 U.S. 421, 3 Sup.Ct. 289; Bock v. Perkins, 139 U.S. 628, 11 Sup.Ct. 677.'

While it is true that in that case the receivership was over the property of a company incorporated by congress, the decision is expressly placed upon the broad ground that the receivers were acting under appointment by the federal court, and the precedents cited are only applicable to that view. That it was so understood and intended by the court appears in Tennessee v. Bank of Commerce, 152 U.S. 454, 463, 472, 14 Sup.Ct. 654, where an interpretation is given in each of the opinions. Mr. Justice Gray, in the opinion of the court, referring to Railway Co. v. Cox, says:

'This court, speaking by the chief justice, after observing that the corporation would have been entitled, under the act of 1875, to remove a suit brought against it in a state court, maintained the jurisdiction of the circuit court of the United States of the action against the receivers, under the act of 1887, upon the ground that the right to sue, without the leave of the court which appointed them, receivers appointed by a

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