Pendar v. Empire Gas & Fuel Co.

Decision Date09 October 1919
Docket Number279.
Citation260 F. 669
PartiesPENDAR v. EMPIRE GAS & FUEL CO.
CourtU.S. District Court — Southern District of Texas

Sam Streetman, of Houston, Tex., for the motion.

A. D Dyess, of Houston, Tex., opposed.

HUTCHESON District Judge.

This is a motion to remand to the district court for the Fifty-Fifth judicial district of Harris county, Tex., the above styled and numbered cause. The sole ground of removal is diversity of citizenship, while the ground of the motion to remand is that the plaintiff and defendant, while residents and citizens of different states, are neither of them residents of the state of Texas, or of the Southern district thereof. The plaintiff is a citizen of the state of South Dakota. The defendant is a corporation incorporated under the laws of Maine, and therefore a citizen, and, for jurisdictional purposes, a resident, of the state of Maine. It is conceded by counsel for the respondent that, were this suit brought in this district by original process, this court could not under section 1033, Comp. St., since neither of the parties reside here, entertain jurisdiction without consent of both parties to the proceeding. But he contends that the removal statute (section 1010), authorizing the removal of a cause by a nonresident defendant into the District Court of the United States for the proper district, is not limited or qualified by section 1033, but gives to a defendant the absolute right to remove any case into the federal district having jurisdiction over the place where the suit is brought in the state court, provided only the defendant is a nonresident of that state and district.

It is conceded further by counsel for defendant that the case of Ex parte Wisner, 203 U.S. 449, 27 Sup.Ct. 150, 51 L.Ed. 264, is authority against this contention, and that, if that case is the law of this case, the motion to remand must be sustained. They point, however, to the fact that of the three propositions in effect decided in the Wisner Case-- that a suit can only be removed into the district where it could have originally been brought, that mandamus will lie to correct the improper action of a district court in taking jurisdiction, and that jurisdiction cannot be conferred by consent where the parties are citizens of different states and neither is a citizen of the state where the suit is pending-- the second and third have been overruled in Ex parte Hardin, 219 U.S. 363, 31 Sup.Ct. 324, 55 L.Ed. 252, 37 L.R.A. (N.S.) 392, and Ex parte Moore, 209 U.S. 490, 28 Sup.Ct. 585, 706, 52 L.Ed. 904, 14 Ann.Cas. 1164 respectively, and they declare that the first is so wanting in merit as that certain of the inferior federal courts have already refused to follow it. They call my attention to a lengthy opinion by Judge Cochran, of the Eastern district of Kentucky, in the case of L. & N. Railway Co. v. Western Union Telegraph Co., 218 F. 91, an opinion of Judge Ervin, of the Southern district of Alabama, while sitting in the Northern district of Texas, in the case of James v. Amarillo City Light & Water Co., 251 F. 337, and a dissenting opinion by Judge Learned Hand of the district bench of the Second circuit, in the case of Guaranty Trust Co. v. McCabe, 250 F. 704, 163 C.C.A. 31.

I am not disposed to deny the force of much of the reasoning in the opinions of those judges, but it appears to...

To continue reading

Request your trial
2 cases
  • Nickels v. Pullman Co.
    • United States
    • U.S. Court of Appeals — Fourth Circuit
    • August 7, 1920
    ... ... court. In support of this conclusion see Pendar v. Empire ... Co. (D.C.) 260 F. 669; Guaranty Trust Co. v ... McCabe, 250 F. 699, 163 C.C.A ... ...
  • Coalmont Moshannon Coal Co. v. Matthew Addy Steamship & Commerce Corporation, Inc.
    • United States
    • U.S. Court of Appeals — Fourth Circuit
    • January 1, 1921
    ... ... cited, of which the following may be referred to: Doherty ... v. Smith (D.C.) 233 F. 132; Pendar v. Empire Gas & ... Fuel Co. (D.C.) 260 F. 669; Isaac Kubie Co. v ... Lehigh Valley R.R. Co ... ...

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