Morris v. Clark Const. Co.
| Decision Date | 10 November 1905 |
| Citation | 140 F. 756 |
| Parties | MORRIS v. CLARK CONST. CO. |
| Court | U.S. Court of Appeals — Fourth Circuit |
Legare & Holman, for plaintiff.
Smythe Lee & Frost, for defendant.
This is a motion by the plaintiff to remand this case to the state court, whence it was removed by the defendant company. The plaintiff is an alien, and the defendant company is a corporation chartered under the laws of Illinois.
Act Aug. 13, 1888, c. 866, 25 Stat. 433 (U.S. Comp. St. 1901, p 508), passed to correct the enrollment of Act March 3, 1887 c. 373, 24 Stat. 552, which determines the jurisdiction of the Circuit Courts of the United States, provides that such courts 'shall have original cognizance concurrent with the courts of the several states of all suits of a civil nature at common law or in equity, where the matter in dispute exceeds, exclusive of interest and costs, the sum or value of $2,000, in which * * * there shall be a controversy between citizens of different states, or a controversy between citizens of a state and foreign states, citizens or subjects,' in which is involved the requisite jurisdictional amount above stated. It is further provided that 'where the jurisdiction is founded only on the fact that the action is between citizens of different states, suits shall be brought only in the district of the residence of either the plaintiff or the defendant. ' Section 2 of the same act provides that 'suits of a civil nature, of which the Circuit Courts of the United States are given jurisdiction by the preceding section, and which are pending in any state court, may be moved into the Circuit Court of the United States for the proper district by the defendant or defendants therein being nonresidents of that state.'
The ground upon which the motion to remand rests is that, the plaintiff being an alien and the defendant company a citizen of Illinois, this court has no jurisdiction. It is conceded that, if the defendant company was a citizen of South Carolina, the alien plaintiff could have brought his suit in this court, and its jurisdiction to determine the controversy could not be disputed, for it would be a controversy between citizens of a state and foreign states, citizens, or subjects, of which the Circuit Courts of the United States have original cognizance by the terms of the statute; but, inasmuch as the defendant company is not a citizen of South Carolina, it could not be sued outside the district of its residence without its consent. But it has been decided by the Supreme Court of the United States in numerous cases that that is a personal privilege of the defendant and may be waived. In Ex parte Schollenberger, 96 U.S. 369, 24 L.Ed. 853, Chief Justice Waite says:
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