Lee v. Chesapeake Ry Co, 422

Decision Date22 January 1923
Docket NumberNo. 422,422
Citation43 S.Ct. 230,260 U.S. 653,67 L.Ed. 443
PartiesLEE v. CHESAPEAKE & O. RY. CO
CourtU.S. Supreme Court

Mr. Allan D. Cole, of Maysville, Ky., for plaintiff in error.

Mr. E. L. Worthington, of Maysville, Ky., for defendant in error.

Mr. Justice VAN DEVANTER delivered the opinion of the Court.

This was an action to recover damages in the sum of $10,000 for personal injuries alleged to have been sustained by the plaintiff while entering one of the defendant's passenger trains in Kentucky for an intrastate trip. The plaintiff was a citizen and resident of Texas and the defendant a corporate citizen and resident of Virginia. The action was begun in a state court in Bracken county, Ky., and, because of the diverse citizenship of the parties, was removed, at the defendant's instance, into the District Court of the United States for the Eastern District of Kentucky, which includes Bracken county. When the transcript reached the District Court, the plaintiff moved that the cause be remanded to the state court on the ground that the District Court was without jurisdiction in that neither party was a resident of that district. The motion was overruled, the plaintiff elected to stand on the motion, and judgment was given for the defendant. The plaintiff then brought the case here on a direct writ of error (Judicial Code, § 238 [Comp. St. § 1215]), to obtain a review of the ruling on his motion to remand.

Under the Constitution, art. 3, § 2, the judicial power extends, among other cases, to such as arise under the Constitution, laws, and treaties of the United States, and to such as are between citizens of different states.

Section 24 of the Judicial Code (Comp. St. § 991) defines the general jurisdiction of the District Courts, the pertinent provision being as follows:

'The District Courts shall have original jurisdiction * * * of all suits of a civil nature, at common law or in equity, * * * where the matter in controversy exceeds exclusive of interest and costs, the sum or value of three thousand dollars, and (a) arises under the Constitution or laws of the United States, or treaties made, or which shall be made, under their authority, or (b) is between citizens of different states. * * *'

This grant of jurisdiction covers two distinct classes of suits. In one the citizenship of the parties is not an element, while in the other it is the distinctive feature. As to the suit before us it is very clear that the diverse citizenship of the parties and the sum inv lved bring it within the latter class, and therefore within the general jurisdiction of the District Courts.

Section 51 of the Code (Comp. St. § 1033) relates to the venue of suits originally begun in those courts, and provides, subject to exceptions not material here, 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 either the plaintiff or the defendant.'

It is a necessary conclusion from repeated decisions, going back to the original Judiciary Act of 1789 (1 Stat. 73) that this provision does not limit the general jurisdiction of the District Courts or withdraw any suit therefrom, but merely confers a personal privilege on the defendant, which he may assert, or may waive, at his election, and does waive if, when sued in some other district, he enters an appearance without claiming his privilege. Gracie v. Palmer, 8 Wheat. 699, 5 L. Ed. 719; Toland v. Sprague, 12 Pet. 300, 330, 9 L. Ed. 1093; Ex parte Schollenberger, 96 U. S. 369, 378, 24 L. Ed. 853; Central Trust Co. v. McGeorge, 151 U. S. 129, 14 Sup. Ct. 286, 38 L. Ed. 98; Interior Construction Co. v. Gibney, 160 U. S. 217, 16 Sup. Ct. 272, 40 L. Ed. 401; United States v. Hvoslef, 237 U. S. 1, 12, 35 Sup. Ct. 459, 59 L. Ed. 813, Ann. Cas. 1916A, 286; Camp v. Gress, 250 U. S. 308, 311, 39 Sup. Ct. 478, 63 L. Ed. 997; General Investment Co. v. Lake Shore & Michigan Southern Ry. Co. (November 27, 1922) 260 U. S. 261, 43 Sup. Ct. 106, 67 L. Ed. ——. The following excerpt from Interior Construction Co. v. Gibney, at page 219 of 160 U. S., at page 273 of 16 Sup. Ct. (40 L. Ed. 401), is particularly apposite:

'The Circuit Courts of the United States are thus vested with general jurisdiction of civil actions, involving the requisite pecuniary value, between citizens of different states. Diversity of citizenship is a condition of jurisdiction, and, when that does not appear upon the record, the court, of its own motion, will order the action to be dismissed. But the provision as to the particular district in which the action shall be brought does not touch the general jurisdiction of the court over such a cause between such parties, but affects only the proceedings taken to bring the defendant within such jurisdiction, and is a matter of personal privilege, which the defendant may insist upon, or may waive, at his election; and the defendant's right to object that an action, within the general jurisdiction of the court, is brought in the wrong district, is waived by entering a general appearance, without taking the objection.'

Section 28 of the Code (Comp. St. § 1010) deals with the jurisdiction of the District Courts on removals from the state courts, saying, so far as is material here:

'Any suit of a civil nature, at law or in equity, arising under the Constitution or laws of the United States, or treaties made, or which shall be made, under their authority, of which the District Courts of the United States are given original jurisdiction by this title, which may now be pending or which may hereafter be brought, in any state court, may be removed by the defendant or defendants therein to the District Court of the United States for the proper district. 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.'

Section 29 (section 1011) deals, among other things, with the venue on removals and shows that in every instance the removal must be into the District Court 'in the district where such suit is pending'; and this requirement is emphasized by section 53, which directs that, where the district is composed of two or more distinct divisions, the removal shall be into the District Court 'in the division in which the county is situated from which the removal is made.' Thus the words 'for the proper district,' in section 28, find exact definition in sections 29 and 53; and that definition conforms to what has appeared in all removal statutes beginning with the original Judiciary Act of 1789.1

The several provisions of the Code before quoted were considered in the recent case of General Investment Co. v. Lake Shore & Michigan Southern Ry. Co., supra, where their meaning and their relation one to another were summed up as follows:

'Section 24 contains a typical grant of original jurisdiction to the District Courts in general of 'all suits' in the classes falling within its descriptive terms, save certain suits by assignees of particular choses in action. Section 51 does not withdraw and suit from that grant, but merely regulates the place of suit, its purpose being to save defendants from inconveniences to which they might be subjected if they could be compelled to answer in any district, or wherever found. Like similar state statutes, it accords to defendants a privilege which they may, and not infrequently do, waive.

'Coming to the removal section (28), it is apparent that the clause, 'of which the District Courts of the United States are given original jurisdiction,' refers to the jurisdiction conferred on the District Courts in general, for it speaks of them in the plural. That it does not refer to the venue provision in section 51 is apparent, first, because that provision does not except or take any suit from the general jurisdiction conferred by section 24; next, because there could be no purpose in extending to removals the personal privilege accorded to defendants by section 51, since removals are had only at the instance of defendants; and, lastly, because the venue on removal is specially dealt with and fixed by section 29.'

It will be perceived that the right of removal under section 28 arises whenever a suit within the general jurisdiction of the District Courts is begun in 'any' state court, and also that the party to whom the right is given is designated in direct and unequivocal terms. Where the suit arises under the Constitution, or a law or treaty, of the United States, the right is given to 'the defendant or defendants' without any qualification; and as to 'any other suit' it is given to 'the defendant or defendants,' if he or they be 'nonresidents of that state.' In neither instance is the plaintiff's assent essential in any sense to the exercise of the right. Nor is it admissible for him to...

To continue reading

Request your trial
126 cases
  • In re Burley
    • United States
    • U.S. Bankruptcy Court — Central District of California
    • May 28, 1981
    ...84 L.Ed. 167; General Investment Co. v. Lake Shore Ry. Co., 260 U.S. 261, 43 S.Ct. 106, 67 L.Ed. 244, and Lee v. Chesapeake & Ohio Ry. Co., 260 U.S. 653, 43 S.Ct. 230, 67 L.Ed. 443, overruling Ex parte Wisner, 203 U.S. 449, 27 S.Ct. 150, 51 L.Ed. 264, and qualifying In re Moore, 209 U.S. 49......
  • George Weston, Ltd. v. N.Y. Cent. R. Co.
    • United States
    • New Jersey Supreme Court
    • October 8, 1935
    ...begun in the Federal District Court, and do not qualify or restrict the operation of the removal act. Lee v. Chesapeake & Ohio R. Co, 260 U. S. 653, 43 S. Ct. 230, 231, 67 L. Ed. 443. It was there held that this provision does not qualify or restrain the general jurisdiction of the District......
  • Burnet v. Coronado Oil Gas Co
    • United States
    • U.S. Supreme Court
    • April 11, 1932
    ...in part overruling Friedlander v. Texas & Pacific Ry. Co., 130 U. S. 416, 9 S. Ct. 570, 32 L. Ed. 991; Lee v. Chesapeake & Ohio Ry. Co., 260 U. S. 653, 659, 43 S. Ct. 230, 67 L. Ed. 443, overruling Ex parte Wisner, 203 U. S. 449, 27 S. Ct. 150, 51 L. Ed. 264, and qualifying In re Moore, 209......
  • Freeman v. Bee Machine Co
    • United States
    • U.S. Supreme Court
    • June 1, 1943
    ...neither is a citizen may be removed to the federal court of the district in which the suit is pending. Lee v. Chesapeake & Ohio Ry. Co., 260 U.S. 653, 43 S.Ct. 230, 67 L.Ed. 443. See Neirbo Co. v. Bethlehem Shipbuilding Corp., 308 U.S. 165, 168, 60 S.Ct. 153, 154, 84 L.Ed. 167, 128 A.L.R. 1......
  • Request a trial to view additional results
2 books & journal articles
  • The Class Action Fairness Act of 2005 in historical context: a preliminary view.
    • United States
    • University of Pennsylvania Law Review Vol. 156 No. 6, June 2008
    • June 1, 2008
    ...of a case brought in a district in which neither the plaintiff nor the defendant resided, and Lee v. Chesapeake & Ohio Railway Co., 260 U.S. 653, 658-61 (1923), in which the Court overruled Wisner and held that a case otherwise removable can be removed without regard to the original ven......
  • Interests of amici curiae.
    • United States
    • Defense Counsel Journal Vol. 81 No. 4, October 2014
    • October 1, 2014
    ...cases to the provisions contained in the Judiciary Act of 1789. As the Court recognized in Lee v. Chesapeake & Ohio Ry. Co., 260 U.S. 653 (1923), the right of removal had not been abridged beyond restrictions explicitly included in the 1887 [W]hile the comparison between [the 1875 statu......

VLEX uses login cookies to provide you with a better browsing experience. If you click on 'Accept' or continue browsing this site we consider that you accept our cookie policy. ACCEPT