Odhner v. Northern Pac. Ry. Co.

Decision Date11 November 1910
PartiesODHNER v. NORTHERN PAC. RY. CO.
CourtU.S. District Court — Southern District of New York

Robert H. Griffin, for plaintiff.

Stetson Jennings & Russell, for defendant.

COXE Circuit Judge.

This action was brought in the Supreme Court of the state of New York, the venue being laid in the county of New York.

The defendant removed it to this court on the ground of diversity of citizenship. The plaintiff moves to remand. The plaintiff resides in New York, but is an alien and a subject of the King of Sweden. The defendant is a Wisconsin corporation.

The action is to recover damages alleged to have been sustained by the plaintiff at Minneapolis, Minnesota. We have, then, in the Southern District of New York, an action brought by an alien against a Wisconsin corporation upon a cause of action which arose in Minnesota.

The defendant concedes as follows:

'It follows, therefore, that while the alien plaintiff in the present suit could not originally have brought and maintained this suit in this court against the objection of the citizen defendant, nevertheless such right of the defendant to object was a personal privilege which might be waived by the defendant, and was in fact waived by removing the cause to this court.'

But the plaintiff has waived none of his rights and has never consented to present his controversy to this court.

Has this court jurisdiction? In ex parte Wisner, 203 U.S. 449, 27 Sup.Ct. 150, 51 L.Ed. 264, the Supreme Court in December 1906 granted a writ of mandamus directing the Circuit Court to remand to the state court an action brought therein by a citizen of another state against a non-resident defendant who was a citizen of a state other than that of the plaintiff. The cause was elaborately argued and the Chief Justice delivered a carefully prepared opinion dealing with all the questions involved. He says, inter alia,

'And it is settled that no suit is removable under section 2 (Act March 3, 1875, c. 137, 18 Stat. 470 (U.S. Comp. St. 1901, p. 509)) unless it be one that plaintiff could have brought originally in the circuit court. * * * In the present case neither of the parties was a citizen of the state of Missouri, in which state the suit was brought, and, therefore, it could not have been brought in the circuit court in the first instance. * * * When, then, Beardsley filed his petition for removal, he sought affirmative relief in another district than his own. But plaintiff, in resisting the application and moving to remand denied the jurisdiction of the circuit court. * * * Our conclusion is that the case should have been remanded, and as the circuit court had no jurisdiction to proceed, that mandamus is the proper remedy.'

In the Matter of Moore, 209 U.S. 490, 28 Sup.Ct. 585, 706, 52 L.Ed. 904, Mr. Justice Brewer adopts the syllabus of the Wisner Case as a concise statement of the conclusion of the court and says:

'It was held in Ex parte Wisner, 203 U.S. 449, 27 Sup.Ct. 150, 51 L.Ed. 264, that: 'Under sections 1, 2, 3 of the act of March 3, 1875, c. 137, 18 Stat. 470, 471, as amended by the act of March 1, 1887, c. 373, Sec. 1, 24 Stat. 552. 553, corrected by the act of August 13, 1888, c. 866, Sec. 1, 25 Stat. 433-435 (U.S. Comp. St. 1901, pp. 508-510) an action commenced in a state court, by a citizen of another state, against a nonresident defendant, who is a citizen of a state other than that of the plaintiff, cannot be removed by the defendant into the Circuit Court of the United States.' * * * But in that case the plaintiff never consented to accept the jurisdiction of the United States court, while in this case it is contended that both parties did so consent, and that therefore the decision in that case is not controlling.'

The court then holds that both parties did consent, the defendant by filing a petition for removal, and the plaintiff by filing an amended petition in the United States Circuit Court and giving time, by stipulation, to the defendant to answer.

I cannot avoid the conclusion that the Wisner decision disposes of the case at bar. The only important distinction upon the facts is that the plaintiff in the Wisner Case was a citizen and in this case he is an...

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