M. Hohenberg & Co. v. Mobile Liners, Inc.

• Decision Date: 24 July 1917
• Docket Number: 574.
• Citation: 245 F. 169
• Parties: M. HOHENBERG & CO. v. MOBILE LINERS, Inc.
• Court: U.S. District Court — Southern District of Alabama

245 F. 169

M. HOHENBERG & CO. v. MOBILE LINERS, Inc.

No. 574.

United States District Court, S.D. Alabama.

July 24, 1917

Stevens McCorvey & McLeod, of Mobile, Ala., for plaintiff.

Palmer Pillans, of Mobile, Ala., for defendant.

ERVIN District Judge.

This cause comes on to be heard on the motion of plaintiff to remand the cause to the state court. The question depends on the proper construction of the statute as codified in the Judicial Code.

The District Courts are, by section 24 of the Judicial Code (Comp. St. 1916, Sec. 991), given jurisdiction of all suits of a civil nature at common law or in equity where the matter in controversy exceeds $3,000 and is between citizens of different states. Section 51 (Comp. St. 1916, Sec. 1033) provides 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 the plaintiff or defendant. (Italics mine.)

It will be observed that the jurisdiction to determine a controversy between citizens of different states, is conferred by section 24; while section 51 fixes the venue in which the plaintiff is authorized to institute suit by original process or proceeding. Section 51 prohibits only the institution of original suits, and the words characterizing the beginning of such suits 'by any original process or proceeding' certainly intimates that suits may be gotten into this court by some other process.

The statement had already been made that no civil suit shall be brought in any District Court against any person in any other district than that whereof he is an inhabitant. Now, the words 'by any original process or proceeding' were absolutely unnecessary to add anything to the previous statement that no civil suit shall be brought in any district other than that of the residence of the defendant. The inclusion of these words 'by any original process or proceeding' can, to my mind, have only the effect of qualifying or limiting the statement as to bringing of the suit in a district other than that whereof the defendant is an inhabitant, by intimating that the suit might be gotten into such court by some process other than that of the original process or proceeding.

The statement that where the jurisdiction of the court is founded on the fact that the action is between citizens of different states that suit may be brought either in the district of the residence of the plaintiff or the defendant carries to my mind the same statement, namely, that the suit shall not be originally instituted in any district other than that of the residence of the plaintiff or defendant. If, however, the court has jurisdiction of the cause of action because it is between citizens of different states, and this cause of action can be removed into the federal court, under any known provision of the law, such removal would not be prohibited by the language of section 51.

Section 28 provides:

'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 the 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.'

It will be noticed that the provision as to removal is not on its face in any manner limited to removal to a district in which the suit might originally have been brought. It gives the right to remove such suit of which the District Courts of the United States are given jurisdiction, and this is the only limitation placed by the removal statute upon the right to remove. The only condition is that the defendant or defendants shall be nonresidents of the state in which the suit is brought.

Now, it seems to me that where the federal court is given jurisdiction of a suit which is instituted in the state court, and petition for removal is filed by a nonresident of such state, and the fact of nonresidence and jurisdiction being shown by the petition, this is all that is required by the removal statute to transfer such cause from the state to the federal court.

A careful reading of the provisions above quoted leads me to conclude:

First. That the jurisdiction is given to the District Court by section 24 where the controversy is between citizens of different states.

Second. That the plaintiff has the right in the first instance, when he and defendant are citizens of different states, to institute it by any original process or proceeding in the District Court of the United States in the district of the residence of either the plaintiff or the defendant.

Third. When the plaintiff has exercised his election to sue in the court of a state of which defendant is a nonresident, that such defendant is given the right under section 28 to remove such suit to the District Court of the United States for such district.

These provisions have never denied to the plaintiff in the first instance the right to sue in the state court, but they have given him the right to elect to sue either in the state court or in the federal court, but, while leaving to the plaintiff such election in the first instance to sue in the state court, it then gives to defendant, being a nonresident of such state, the right to remove such suit to the federal court. It then follows that, if such right is given to the defendant,...