Koenigsberger v. Richmond Silver Min Co Richmond Silver Min Co v. Koenigsberger

• Decision Date: 22 April 1895
• Docket Number: Nos. 260 and 220,s. 260 and 220
• Citation: 15 S.Ct. 751,39 L.Ed. 889,158 U.S. 41
• Parties: KOENIGSBERGER v. RICHMOND SILVER MIN. CO. RICHMOND SILVER MIN. CO. v. KOENIGSBERGER
• Court: U.S. Supreme Court

158 U.S. 41

15 S.Ct. 751

39 L.Ed. 889

KOENIGSBERGER

v RICHMOND SILVER MIN. CO.

RICHMOND SILVER MIN. CO.

v. KOENIGSBERGER.

Nos. 260 and 220.

April 22, 1895.

S. S. Burdett and G. C. Moody, for plaintiff in error.

Wager Swayne, for defendant in error.

Mr. Justice GRAY delivered the opinion of the court.

This was an action at law, commenced October 17, 1883, in the district court of the First judicial district of the territory of Dakota, in and for Lawrence county, by Victor Dorne against the Richmond Silver Mining Company. The complaint alleged that the plaintiff on December 11, 1882, sold and conveyed to the defendant a certain interest in mining claims in that county; that the defendant, in consideration thereof, agreed to transfer and deliver to the plaintiff, within three weeks, 14,285 5/7 shares of its corporate stock; and that the defendant transferred and delivered to the plaintiff 3,500 shares of its stock, and neglected and refused to deliver him any more, to the damage of the plaintiff in the sum of $15,000. The answer was a general denial.

Upon a trial by jury in that court in April, 1889, the plaintiff introduced evidence tending substantially to provet he contract and breach alleged, and no objection of variance was interposed. The plaintiff testified that the shares which the defendant had not transferred to him were worth at the time of the breach from one to two dollars a share. The defendant's president, being called and examined as a witness in its behalf, testified that he was one of the original incorporators, and owned 19,000 or 20,000 shares; that he bought them at 50 cents a share; and that the stock had been sold in the market at that price. Part of the plaintiff's testimony as to the value of the shares was to matters of opinion, and to a contract of sale between himself and a third person, which the plaintiff had not carried out, and was admitted by the court against the objection and exception of the defendant. Other exceptions taken by the defendant to the rulings and instructions of the court were immaterial or groundless, and require no particular notice. The court, in accordance with a request of the defendant, instructed the jury that, if they were satisfied that the plaintiff was entitled to recover, the measure of his damages would be the value of the 10,785 5/7 shares of the defendant's stock which he had not received, being the price at which he might, with reasonable diligence, have purchased an equivalent amount of the stock in the nearest market, together with interest thereon at the rate of 7 per cent. per annum.

The jury returned a verdict for the plaintiff in the sum of $15,315.70. The defendant filed a motion for a new trial, for newly-discovered evidence, as shown by affidavits, tending to impeach the plaintiff's testimony as to the value of the shares, as well as for excessive damages, and for insufficiency of the evidence to sustain the verdict, and for errors in law occurring at the trial, and excepted to by the defendant. The court overruled the motion, and rendered judgment on the verdict for the sum found due by the jury, and interest, and on September 28, 1889, allowed a bill of exceptions tendered by the defendant.

On October 8, 1889, the defendant appealed to the supreme court of the territory of Dakota, and gave bond to prosecute the appeal, and on the same day entered the appeal in that court; and it was there pending on November 2, 1889, when the southern part of the territory of Dakota, including Lawrence county, was admitted into the Union as the state of South Dakota, under the act of congress of February 22, 1889 (chapter 180), for the division of Dakota into two states, and for the admission of the states of North Dakota, South Dakota, Montana, and Washington into the Union, the material provisions of which are copied in the margin.¹

The case was thereupon entered in the supreme court of the state of South Dakota. On February 4, 1890, the defend- ant filed in that court a petition, verified by oath, to transfer the case to the circuit court of the United States for the district of South Dakota, because the defendant was, at the time of bringing the action, and still was, a corporation and citizen of the state of New York, and the plaintiff was then a citizen of that portion of the territory of Dakota which was now the state of South Dakota, and still was a citizen of South Dakota. On March 1, 1890, after notice and hearing, that petition was granted, and the case was transferred accordingly. 1 S. D. 20, 44 N. W. 1021.

The circuit court of the United States for the district of South Dakota, afterwards, upon notice and hearing, denied a motion of the plaintiff to remand the case to the supreme court of the state of South Dakota (43 Fed. 690), and then heard the case upon the record from that court, 'except that the court declined to consider the affidavits used in support of the motion for new trial, and limited its consideration of the appeal from the judgment and from the order overruling the motion for a new trial to the assignments of errors of law occurring during the trial, to which action of the court in declining to consider such affidavits, and limitingi ts consideration aforesaid, counsel for defendant and appellant at the time duly excepted; and, after taking this cause under advisement, and upon due consideration, this court, being of the opinion that reversible error had been committed in the trial court upon the question of damages, but that the judgment of the trial court could be affirmed for one-half the amount thereof, provided the plaintiff would consent to remit the balance,' ordered that the judgment be reversed, and a new trial granted, unless the plaintiff should file, within 10 days, a consent in writing to remit one-half of that judgment, in which event a judgment of affirmance might be entered for one-half of such original judgment, with interest thereon from the date of its entry, and without costs to either party.

In accordance with that order, the plaintiff filed a remittitur of one-half of the judgment; and on his motion the court ordered the judgment to be affirmed to the extent of one-half thereof, amounting, with interest, to the sum of $8,823.96. Each party tendered and was allowed a bill of exceptions, and sued out a writ of error; and the original plaintiff, Dorne, having died since the entry of the case in this court, his writ of error was prosecuted by Sebastian Koenigsberger, as his administrator.

The most important question in this case is whether the circuit court of the United States for the district of South Dakota had jurisdiction of it. This question has been fully argued at the bar, but would be noticed by this court had it not been suggested by either party.

The facts upon which the decision of this question depends are not in dispute. The action was brought in a district court of that part of the territory of Dakota which afterwards became the state of South Dakota. The plaintiff, at the time of bringing the action, was a citizen of that part of the territory, and, upon the admission of the state of South Dakota into the Union, became a citizen of that state. The defendant, at the time of the bringing of the action, and ever since, was a corporation of the state of New York. The merits of the case did not involve any question under the constitution and laws of the United States. The case, after trial and judgment in the district court of the territory, was pending on appeal in the supreme court of the territory at the time of the admission of the state into the Union, and upon such admission was entered in the supreme court of the state, and was thence transferred, on petition of the defendant, to the circuit court of the United States, which after- wards denied a motion of the plaintiff to remand it to the supreme court of the state.

The defendant's petition to transfer the case to the circuit court of the United States having been filed in the supreme court of the state before it had taken any action in the case, there has been no waiver of any right which the defendant had to have the case heard and determined in the circuit court of the United States. Carr v. Fife, 156 U. S. 494, 15 Sup. Ct. 427; Ames v. Railroad Co., 4 Dill. 251, Fed. Cas. No. 324.

The plaintiff relies on the provisions of section 23 of the act of congress of February 22, 1889 (chapter 180), for the admission of South Dakota and other states into the Union, by which, in respect to all cases pending in the supreme or in a district court of either of the territories therein mentioned at the time of the admission of either of the states named into the Union, and arising within the limits of the state, 'whereof the circuit or district courts by this act established might have had jurisdiction under the laws of the United States, has such courts existed at the time of the commencement of such cases,' those circuit and district courts shall be the successors of the supreme and district courts of the territory, and, in respect to all other cases so pending and arising the courts established by the state shall be the successors of such territorial courts. 25 Stat. 683.

The plaintiff's contention is that as the circut and district courts of the United States are declared to be the successors of the territorial courts in respect of those cases only of which such circuit and district courts 'might have had jurisdiction under the laws of the United States, had such courts existed at the time of the commencement of such cases,' the circuit court could not acquire jurisdiction of this case by reason of the diversity of citizenship between the parties, because at the time of the commencement of the case, although the defendant was a citizen of a state, yet the plaintiff was a citizen of a territory, and the circuit courts of the United States have no jurisdiction, by reason of diversity of citizenship, of a suit between a...