Peninsula Lumber Co. v. Royal Indemnity Co.

• Decision Date: 04 December 1916
• Docket Number: 7314.
• Citation: 237 F. 297
• Parties: PENINSULA LUMBER CO. v. ROYAL INDEMNITY CO.
• Court: U.S. Court of Appeals — Ninth Circuit

237 F. 297

PENINSULA LUMBER CO. v. ROYAL INDEMNITY CO.

No. 7314.

United States District Court, D. Oregon.

December 4, 1916

James B. Kerr and Richard Sleight, both of Portland, Or., for plaintiff.

Watt Thornton & Watt, of San Francisco, Cal., and Wilbur, Spencer & Beckett, of Portland, Or., for defendant.

WOLVERTON District Judge.

This action was instituted in the circuit court of the state of Oregon for Multnomah county. The plaintiff is a resident and inhabitant of the state of Wisconsin, and the defendant a resident and inhabitant of the state of New York. Defendant in due time petitioned for a removal of the cause to this court, and the removal was allowed. When the case reached here, the defendant demurred to the complaint. The plaintiff appearing specially and for the purpose of the motion only moved to remand the cause to the state court, on the ground that this court is without jurisdiction in the premises.

It is apparent that jurisdiction of the court is based on the ground of diversity of citizenship; but neither of the parties is a citizen and inhabitant of the state of Oregon. The sole question presented is whether this court has jurisdiction to entertain the cause, and to decide the same upon its merits. In the case of Ex parte Wisner, 203 U.S 449, 27 Sup.Ct. 150, 51 L.Ed. 264, arising upon a similar state of facts, the Supreme Court, entertaining jurisdiction by mandamus and prohibition, decided that the cause should be remanded. In the course of the opinion the court said:

'Jurisdiction of the suit could not have obtained, even with the consent of both parties.'

This case is decisive of the one at bar, unless it has been overruled by a subsequent decision of the Supreme Court. The contention of defendant is that it has been so overruled, citing to that purpose In re Moore, 209 U.S. 490, 28 Sup.Ct. 585, 706, 52 L.Ed. 904, 14 Ann.Cas. 1164, and Western Loan Co. v. Butte & Boston Min. Co., 210 U.S. 368, 28 Sup.Ct. 720, 52 L.Ed. 1101.

The former case arose upon substantially the same state of facts as the one at bar, except that plaintiff, after removal of the cause to the Circuit Court of the United States, filed an amended petition and signed a stipulation giving time to the defendant to answer, and subsequently entered into successive stipulations with the defendant for continuation of the trial, all in that court. The Circuit Court refused to remand the cause, and in this holding was sustained by the Supreme Court. The Supreme Court held in effect that the federal court has general jurisdiction in all cases where there is diversity of citizenship, and that, if a suit or action is instituted in a state or district of which neither party is an inhabitant, the right of the parties to insist that the suit should be brought in one or the other of such districts may be waived, and it was further decided that...