People ex rel. Glens Falls Insurance Co. v. Jackson

• Decision Date: 21 October 1870
• Citation: 21 Mich. 577
• Court: Michigan Supreme Court
• Parties: The People ex rel. the Glens Falls Insurance Co. v. The Judge of the Jackson Circuit Court

21 Mich. 577

The People ex rel. the Glens Falls Insurance Co. v. The Judge of the Jackson Circuit Court

Supreme Court of Michigan

October 21, 1870

Heard October 21, 1870

Application for mandamus.

By the Glens Falls insurance company, a corporation organized under the laws of the state of New York, to compel the judge of the circuit court for the county of Jackson to remove a cause pending in that court, in which the relator was defendant and William Jackson plaintiff, to the circuit court of the United States. The action was brought upon a policy of insurance issued in this state by a duly authorized agent of the company, and was commenced by service of process upon an agent of the company duly authorized under the provisions of section 23 of the laws of 1869 (p. 243) to receive such service. The defendant moved in the Jackson circuit court for an order removing the cause, under the provisions of the judiciary acts of the United States, and the motion being denied, the company now comes into this court and asks for a mandamus to the judge of the Jackson circuit court to compel the granting of the order.

A Russell, for relator, cited:

1. To the appropriateness of the remedy by mandamus: State ex rel Tod v. Fairfield Com. Pleas, 15 Ohio State, 377; Hopper v. Kalkman, 17 Cal. 517; Brown v. Crippin, 4 Hen. and Mumf., 173.

2. To the point that the writ should not be applied for in the U S. circuit: Section 14 U. S. Jud. Act, 1789; Ladd v. Tudor, 3 W. and M., 325; Star Ins. Co. Case, 2 Law Rev., 183; Fisk v. R. R., 6 Blatchf. 362.

3. As to practice--state court should order removal: Conkl. Treat., 3d ed., p. 482.

OPINION

Campbell, Ch. J.

This is an application for an order on the circuit judge sitting in Jackson county to show cause why a mandamus should not issue to direct him to remove a cause to the United States circuit court, the relator being defendant and a corporation under the laws of New York, and the plaintiff being a citizen of Michigan. We desired the counsel for the relator to argue the motion, as we had doubts of the propriety of calling upon the circuit judge to respond to such an order, and we have been furnished with the citation of such cases as could be found.

It is alleged, and must on this motion be assumed, that the circuit judge took no exception to the security offered, and only denied the application on the ground that the relator had become bound, by the conditions on which it assumed to do business in Michigan, to submit to the jurisdiction of the state courts. The only questions, therefore, are whether the relator has incurred any such obligation, and whether a mandamus should be granted by this court as the proper remedy in case the removal is within the acts of congress. We think that on both grounds the application should be denied.

We think the validity of the statute providing for the removal of cases to the United States circuit courts is undoubted. And we held in Yawkey v. Richardson, 9 Mich. 529, that in cases to which it applied the removal was a matter of right and not within the discretion of the state courts. If this were the case of a citizen of another state, having the full rights of an individual, and subject to no disabilities, we should have no doubt of the incorrectness of the decision below, however much we might doubt our authority to interfere in this way to correct it.

But while for some purposes a foreign corporation is allowed to be regarded as a citizen of the state incorporating it, and while in the absence of any reason to the contrary it is so regarded under the United States judiciary acts for the purposes of suit, yet any privilege which that relationship might bestow on it may be waived like any other right, and the party may be estopped from setting it up. If the constitution of the United States gave exclusive jurisdiction of suits between citizens of different states to the courts of the United States, then, of course, the state courts could get no jurisdiction by waiver or express consent. But when they have original jurisdiction, and there only exists a right to remove the cause, we see no reason why a party may not become bound by covenant or estoppel to waive his privilege beforehand, as completely as he would lose it by delaying his petition too long. The principle is the same in the one case as in the other.

It was decided in Bank of Augusta v. Earle, 13 Peters R., 519, that a corporation created by one state had no power to do any corporate act in another state unless by the express or implied assent of the latter. And it was held accordingly in Paul v. Commonwealth of Virginia, 8 Wal. R., 168, that such assent might be conditional. The court use the following language: "Having no absolute right or recognition in other states, but depending for such recognition and the enforcement of its contracts upon their assent, it follows, as a matter of course, that such assent may be granted upon such terms and conditions as those states may think proper to impose. They may exclude the foreign corporation entirely; they may restrict its business to particular localities, or they may exact such security for the performance of its contracts with their citizens as in their...