Lehigh Valley Coal Co. v. Yensavage

• Decision Date: 27 October 1914
• Docket Number: 277.
• Citation: 218 F. 547
• Parties: LEHIGH VALLEY COAL CO. v. YENSAVAGE.
• Court: U.S. Court of Appeals — Second Circuit

218 F. 547

LEHIGH VALLEY COAL CO. v. YENSAVAGE.

No. 277.

United States Court of Appeals, Second Circuit.

October 27, 1914

Dissenting Opinion, November 10, 1914.

On Rehearing, November 30, 1914.

This was an action in the District Court for the Eastern District of New York, commenced on November 4, 1912, for damages arising from an accident while in the defendant's employ.

The original complaint stated that the plaintiff was a resident and citizen of the county of Kings, and that the defendant was a resident and citizen of the state of Pennsylvania. Plaintiff served an amended complaint on the 6th of February 1913, repeating the allegation that he was a resident and citizen of the county of Kings and that the defendant was a resident and citizen of the state of Pennsylvania. Defendant denied in each case the allegations of the plaintiff's residence, and the case came to trial on the 23d of June 1913.

On the plaintiff's cross-examination it appeared that he was an alien. Thereupon the defendant made the following objection 'For the purpose of the record, in order that it may appear that we do interpose the objection, since it appears upon the record of the case, I ask that the complaint be dismissed, and the action be dismissed from this court, on the ground that this court has no jurisdiction over this action; the action being one brought by an alien against a corporation organized under the laws of the state of Pennsylvania, and a citizen of Pennsylvania, having its principal office and place of business in Pennsylvania, according to the allegations of the complaint.'

This motion was denied, and exception taken. At the close of the plaintiff's case the defendant renewed its motion in the following terms: 'The defendant moves to dismiss on the ground that it appears by the record that this court has no jurisdiction. ' This was denied, and an exception again taken. The motion was again repeated at the close of all the testimony, again denied, and an exception taken.

It appeared that the plaintiff had been employed by a miner in the employ of the defendant, and the point was also raised that the plaintiff was not directly in the employ of the defendant, as contemplated by the Pennsylvania statutes. More facts in regard to this issue appear in the opinion. The point was overruled, and an exception taken.

The jury returned a verdict in the sum of $37,500, the injuries being extremely severe, which the court afterwards reduced to $25,000, which reduction the plaintiff accepted, rather than take a new trial. A writ of error was sued out upon the judgment so entered, and the case now comes before this court.

Clifton P. Williamson, of New York City, for plaintiff in error.

George C. Holt, of New York City, for defendant in error.

Before COXE and ROGERS, Circuit Judges, and HAND, District Judge.

LEARNED HAND, District Judge.

Upon the point of jurisdiction we think the court below was right. Roberts v. Lewis, 144 U.S. 654, 12 Sup.Ct. 781, 36 L.Ed. 579, decided that a denial of the allegation of citizenship raised the question of jurisdiction over the subject-matter, and that, where the record shows no proof on the issue, the court has no power to proceed. The proof under the pleadings here at bar did not show the exact ground of jurisdiction over the subject-matter which was alleged, but it did show a controversy between an alien and a citizen of the state of Pennsylvania, over which no one questions that the District Court for the Eastern District of Pennsylvania would have had jurisdiction.

The first question is whether in such a case the District Court for the Eastern District of New York had jurisdiction. It is well settled by a long line of authorities that where jurisdiction over the subject-matter depends upon diverse citizenship, and the parties are in fact citizens of different states, the objection that the suit is brought in a district where neither is an inhabitant does not survive general appearance. Interior Construction Co. v Gibney, 160 U.S. 217, 16 Sup.Ct. 272, 40 L.Ed. 401. That is to say, the limitations imposed by Congress as to the place of trial are only for the convenience of the defendant, and do not involve the jurisdiction of the court at all, properly speaking. The difference of opinion which at one time existed in the case of removed causes (Ex parte Wisner, 203 U.S. 449, 27 Sup.Ct. 150, 51 L.Ed. 264; Re Moore, 209 U.S. 490, 28 Sup.Ct. 585, 706, 52 L.Ed. 904, 14 Ann.Cas. 1164; Re Tobin, 214 U.S. 506, 29 Sup.Ct. 702, 53 L.Ed. 1061), never applied to those of original jurisdiction.

When the plaintiff is an alien, the same jurisdiction over the subject-matter exists as when there is diversity of citizenship. Re Tobin, supra, would be a complete answer after appearance in a suit by an alien to the objection that the action was brought in the wrong court, were it not that Ex parte Harding, 219 U.S. 363, 31 Sup.Ct. 324, 55 L.Ed. 252, 37 L.R.A.(N.S.) 392, throws some doubt upon whether the decision in Ex parte Tobin, supra, may not have turned upon a question of procedure. Certainly it is true that in Ex parte Harding, supra, the court said that it would not usually consider such questions upon application for mandamus. We believe, nevertheless, that the decisions in Ex parte Tobin, supra, and Ex parte Nicola, 218 U.S. 668, 31 Sup.Ct. 228, 54 L.Ed. 1203, when made, were meant to be upon the merits, though, as Judge Lewis showed in Sagara v. Chicago, etc., Ry. (C.C.) 189 F. 220, the question must remain open to some doubt.

However, there is no conceivable reason why a different rule should apply to the case of an alien suing a citizen out of the proper district, from that which governs a citizen so suing, and we do not understand that the defendant so claims.

The real question, therefore, is whether the defendant has lost the point by appearance and pleading to the merits. As we have said, where the record requires proof of diversity of citizenship, it is enough that issue is taken on the allegations, and that the record contains no proof. Roberts v. Lewis, supra. But we think that the rule is different where the objection goes only to the proper place of trial. Certainly, where the defect appears upon the face of the complaint, a defendant waives the objection by appearing and pleading to the merits, even though he tries especially to reserve the point by joining a demurrer to the court's jurisdiction over him personally. Western Loan Co. v. Butte & Boston Mining Co., 210 U.S. 368, 28 Sup.Ct. 720, 52 L.Ed. 1101. And this is no less true in actions at law in states whose practice reserves to defendants the right to do exactly that thing. In this respect federal courts do not follow the state practice. Similarly, when, although the complaint on its face shows jurisdiction, the defendant has been served out of the place of its residence, he may not couple a demurrer to the court's jurisdiction over him personally with a plea to the merits. St. Louis & San Francisco Ry. Co. v. McBride, 141 U.S. 127, 11 Sup.Ct. 982, 35 L.Ed. 659.

It is true that the demurrer to the jurisdiction in the last case would seem to have been bad anyway, as it raised only the facts stated on the face of the complaint; but the decision went upon the broader ground that the two pleas could not be coupled, though that was allowed by the state practice. These cases finally dispose of the position that the state statutes are to control on the effect of a general appearance and on the right to couple pleas in abatement with pleas to the merits. They show that Roberts v. Lewis, supra, decided no more than was well settled law before; i.e., that the substantial jurisdiction of the District Court must appear in the record, and that when an allegation has been traversed it does not constitute proof. The unfortunate ambiguity arising from the use of the word 'jurisdiction' has, we think, been the reason for supposing that the decision in fact went any further than this.

The case at bar presents only this difference from St. Louis & San Francisco v. McBride, supra, and Western Loan Co. v. Boston & Butte Mining Co., supra, that the defendant in those cases was apprised of all the facts when he coupled together his plea to the merits and his plea to the jurisdiction, while here he was not. We do not think it necessary to decide that the defendant should miscarry for taking the plaintiff at his word, and pleading to the merits upon the faith of an allegation which, if true, would have entitled him to sue in the court which he chose. We do not, therefore, wish to be understood as deciding, where the plaintiff alleges residence in the district of suit, and the defendant traverses the allegation only by denying any information about it, that if, during the proceedings, it appears that the plaintiff cannot prove his allegation, the defendant's general appearance has bound him.

All we wish to lay down is that, when once the truth appears, then at least the defendant must choose between his plea in abatement and his plea to the merits. Assuming that it is not bad to couple the two positions before the defendant is informed, there can be no justification in allowing him to proceed thereafter in the alternative. The rule which forbids him to do this when advised from the outset must surely forbid him to continue with the same option after the option is once presented. We therefore believe that to proceed with a general plea to the merits, when once the facts were out, was entirely within the rule laid down in the two cases cited, regardless of whether the defendant could or could not reserve the point in any way merely by a traverse to the allegation.

The proper course, therefore, for the defendant, was to ask leave to withdraw...