Kentucky Coal Lands Co. v. Mineral Development Co.

• Court: U.S. Court of Appeals — Sixth Circuit
• Citation: Kentucky Coal Lands Co. v. Mineral Development Co., 219 F. 45 (6th Cir. 1914)
• Decision Date: 09 December 1914
• Docket Number: 2487.
• Parties: KENTUCKY COAL LANDS CO. v. MINERAL DEVELOPMENT CO.

219 F. 45

KENTUCKY COAL LANDS CO. v. MINERAL DEVELOPMENT CO.

No. 2487.

United States Court of Appeals, Sixth Circuit.

December 9, 1914

E. C O'Rear, of Frankfort, Ky., and R. D. Silliman, of New York City, for plaintiff in error.

S. B Dishman, of Barboursville, Ky., and E. L. Worthington, of Maysville, Ky., for defendant in error.

Before WARRINGTON, KNAPPEN, and DENISON, Circuit Judges.

DENISON Circuit Judge.

The plaintiff in error brought what was called an action of ejectment in the state court against the defendant in error. The parties will be named herein as they were called below. The defendant removed the case into the court below upon the ground of diverse citizenship; its petition for removal showing that plaintiff was a citizen of New York and defendant was a citizen of Virginia. The plaintiff moved to remand; its motion being based on the ground that neither party was a resident of the Eastern District of Kentucky. The motion to remand was denied, and plaintiff assigns error thereon.

When the case came on for trial on the merits before a jury, it developed that the Kentucky patent on which plaintiff's title depended was the same one which had been involved and had been considered by this court in Mineral Co. v Tuggle Co., 151 F. 450, 81 C.C.A. 34; and the District Judge, thinking that the question here was only the construction of the patent and so was a question of law, and that it had been decided by this court in the former case directed a verdict for defendant. Error is also assigned upon this ruling.

Having in mind that a suit cannot be removed from a state court to the United States District Court of a district in which it could not have been brought (Ex parte Wisner, 203 U.S. 449, 27 Sup.Ct. 150, 51 L.Ed. 264; In re Moore, 209 U.S. 490, 28 Sup.Ct. 585, 706, 52 L.Ed. 904, 14 Ann.Cas. 1164), it is apparent that the right of removal in this case depended on the answer to this question:

'Was the general grant of jurisdiction found in the earlier part of section 1 of the act of March 3, 1887, covering cases where the matter in controversy exceeds the jurisdictional amount, and is between citizens of different states, so limited by the later part of the same section that such an action as this could not be brought at all in the federal courts, unless the land involved lay in the district of the residence of the plaintiff or the defendant?'

The common-law action of ejectment was classified as mixed rather than as either real or personal; but the actions which are commonly called by that name, when brought under Codes like that of Kentucky, are purely actions to recover the property. As is said of the Code action in Pomeroy on Code Remedies (3d Ed.) 294:

'It far more nearly resembles, in all of its essential features, the ancient real actions which were displaced in use by ejectment. * * * It does not bear the slightest resemblance to the action of ejectment as that was contrived by the old judges and lawyers, and only confusion and misconception result from applying to it that name.'

While the petition in this case prays both that plaintiff be adjudged the owner of the described tracts and that it recover damages for the unlawful detention, yet the action to recover the land itself is none the less a real action because there is united with it, under the permission of the Code, another action which is personal; and it is enough for the present inquiry if there is disclosed on the record one separable controversy properly removable to the federal courts, since in that case it is immaterial that another nonremovable controversy is joined. Barney v. Latham, 103 U.S. 205, 210, 26 L.Ed. 514. The distinctive character of the action makes it clear that it is a local and not a transitory action, because that is true even of a common-law ejectment. Northern Indiana Co. v. Michigan Central Co., 56 U.S. (15 How.) 233, 242, 14 L.Ed. 674.

Assuming then, as we must, that the present action is local, not transitory, we meet the question whether it is affected by the limitation as to residence found in the latter part of the section, or whether that limitation pertains only to transitory actions. The Supreme Court has several times said that this clause or its predecessor in the statutes is not one pertaining to jurisdiction, but rather to venue or to territorial distribution (In re Hohorst, 150 U.S. 653, 660, 14 Sup.Ct. 221, 37 L.Ed. 1211; Sweeney v. Carter Co., 199 U.S. 252, 256, 26 Sup.Ct. 55, 50 L.Ed. 178); and yet, as to those classes of actions to which the restriction does pertain, it is hard to see why the failure to distribute the action anywhere is not as fatal as would be the failure to grant jurisdiction at all; so the real inquiry must be whether the limitation does pertain to local actions.

The decision of the Supreme Court in Casey v. Adams, 102 U.S. 66, 26 L.Ed. 52, goes far towards answering the inquiry; perhaps it is a complete answer. One section of the National Banking Law provided that suits against a bank might be brought in any court of the United States within the district in which the bank was established or in any state court held in the county or city where the bank was located. This provision was broad and general, and upon its face applied to any and every action, personal or real, local or transitory. It differed from the residence limitation clause of section 1 of the act of 1887 only in that the prohibition against suits in other territorial divisions was implied instead of expressed; yet, under the rule that whatever is not named in such enumeration is excluded, it would seem clear enough that a transitory action against such a bank could not have been brought in any place not specified in the permission; and the court seems to have assumed that, if the statute applied at all to the action there involved, the suit must be dismissed. However, the court had no difficulty in finding, from the necessity of the case, an exception not hinted at in the language of the statute. Chief Justice Waite said (at page 67 of 102 U.S. (26 L.Ed. 52)):

'This, we think, relates to transitory actions only, and not to such actions as are by law local in their character. Section 5136 (Comp. St. 1913, Sec. 9661) subjects the banks to suits at law or in equity as fully as natural persons, and we see nowhere in the Banking Act any evidence of an intention on the part of Congress to exempt banks from the ordinary rules of law affecting the locality of actions founded on local things. The distinction between local and transitory actions is as old as actions themselves, and no one has ever supposed that laws, which prescribed generally where one should be sued, included such suits as were local in their character, either by statute or the common law, unless it was expressly so declared. Local actions are in the nature of suits in rem, and are to be prosecuted where the thing on which they are founded is situated. To give the act of Congress the construction now contended for would be in effect to declare that a national bank could not be sued at all in a local action where the thing about which the suit was brought was not in the judicial district of the United States, within which the bank was located. Such a result could never have been contemplated by Congress.'

If Casey v. Adams may be distinguished because of the less positive character of the limitation in the Banking Act as compared with that in the act of 1887, it becomes necessary to make further study of the latter.

As matters stood under the Revised Statutes, jurisdiction of cases of diverse citizenship was conferred by section 629, and there was no reference to the residence of either party. The distribution of the jurisdiction (that is, the venue of the action) was taken up generally by section 739, which said that, except in the cases provided in the preceding section and in the following three sections, suits must be brought in the district whereof the defendant was an inhabitant or was found. The preceding section (738) refers to suits 'to enforce any legal or equitable * * * claim' against property in the district, and provides for service by publication. Section 740 refers to suits not of a local nature, where different defendants live in different districts of the same state; section 741, to suits of a local nature, where the defendant resides in another district in the same state; and section 742 to suits of a local nature, where the 'land or other subject-matter of a fixed character lies partly in one district and partly in another'-- providing that in such case suit may be brought in either district, and process be executed 'as fully as if the said subject-matter were wholly within the district' in which the suit is brought.

Considering together these sections 629 and 738-742, the arrangement is clear and logical. Section 629 conferred jurisdiction. Section 739 (by itself and by virtue of the reference therein contained to sections 741 and 742) distributed the cases by one method as to local actions and by another method as to other actions; and sections 738, 740, and 741 provided methods of service, where the defendant was not found within the district.

The act of 1875, by section 1, revised section 629, and in the midst of it inserted the substance of section 739. By section 8 of this act there was a revision and re-enactment of section 738. Sections 740, 741, and 742 were neither re-enacted nor expressly repealed. Whether they, and especially section 742 have been repealed by implication, was a question which the Supreme Court suggested but left undecided. Greely v. Lowe, 155 U.S. 58, 15 Sup.Ct. 24, 39 L.Ed. 69; Petri v. Creelman, 199 U.S. 487, 493, 26 Sup.Ct. 133, 50 L.Ed. 281; and Galveston Co. v. Gonzalez, 151 U.S....