Pierce v. Desmond

• Decision Date: 01 March 1926
• Citation: 11 F.2d 327
• Parties: PIERCE v. DESMOND.
• Court: U.S. District Court — District of Minnesota

11 F.2d 327 (1926)

PIERCE v. DESMOND.

District Court, D. Minnesota, Third Division.

March 1, 1926.

Davis, Severance & Morgan, of St. Paul, Minn., for plaintiff.

Oscar Hallam, of St. Paul, Minn., for defendant.

MOLYNEAUX, District Judge.

This is a motion to remand, the action being removed from the Ramsey county district court of Minnesota, on the petition of the plaintiff. He sued the defendant, to recover the balance of $353.14, owing him, on two judgments, recovered in actions brought in Wisconsin. The defendant admitted liability on the plaintiff's claims, and pleaded counterclaims for damages, aggregating $10,500, exclusive of cost and interest.

The plaintiff is a citizen and resident of New York, and the defendant of Minnesota, and they were so at the time of the commencement of this action. It will be noted that the plaintiff could not have sued the defendant on his two causes of action in the United States courts, and was compelled, if he sued at all, to sue in the state court. It will also be noted that, if Miss Desmond, record titular defendant herein, had sued Mr. Pierce, the titular plaintiff herein, on her two causes of action, in the state of Minnesota, he could have removed the case to the federal court.

The problem presented for the consideration of the court is the sense in which Congress used the word "defendant" in the Removal Act of 1887, which reads as follows:

"Any other suit of a civil nature, at law or in equity, of which the District Courts of the United States are given jurisdiction by this title, and which are now pending or which may hereafter be brought, in any state court, may be removed into the District Court of the United States for the proper district by the defendant or defendants therein, being nonresidents of that state." U. S. Comp. Stat. 1916, § 1010; section 28 of the Judicial Code.

This clause was enacted as it now stands by the Act of March 3, 1887, 24 Stat. 552, as amended by the Act of August 13, 1888, 25 Stat. 433, being unaffected by later amendments of the removal statutes.

It is contended by counsel, asking that the case be remanded, that the court should adopt as a principle the statement found in Hansen v. Pacific Coast Asphalt Co. (D. C.) 243 F. 283: "It is the duty of the court to remand, where there is doubt as to whether the case has been properly removed."

That suggestion is effectually answered by Judge Walter H. Sanborn, in Boatmen's Bank v. Fritzlen, 135 F. 650, 68 C. C. A. 288 (C. C. A. 8th Circuit, 1905): "The true rule is that motions to remand and for removal should be decided, not by the existence of doubts, but by the preponderance of the facts, the law, and the reasons which condition them, in view of the fact that the right to invoke the jurisdiction of the Federal Court is a valuable constitutional right, and an erroneous affirmance of the claim to that right may be corrected by the Supreme Court upon a certificate of the question of jurisdiction, while an erroneous denial of the claim is remediless."

Although under the present statute there can be no review of such order to remand entered by a federal court, the argument in that case still holds good. The problem presented here has been before the District Courts many times, and the decisions are conflicting. No Supreme Court or Circuit Court decisions on the exact questions have been cited, with the possible exception of the case of West v. Aurora City, 6 Wall. 139, 18 L. Ed. 819.

Miss Desmond's counsel contend: First, that the suit is not one that could have been originally brought in the District Court of the United States; second, that the removal was made on the petition of the plaintiff, and that the right of removal is given to the defendant only; third, that the matter in controversy does not exceed, exclusive of interest and costs, the sum or value of $3,000.

The solution of the question depends upon the meaning to be attached to the word "defendant" as used in the statute. In Carson & Rand Lumber Co. v. Holtzclaw (C. C.) 39 F. 578 (E. D. Mo.), Judge Thayer said:

"If by the word `defendant' we are to understand only the person who is defendant as the parties are arranged when a suit is begun, then this suit is not removable; but if we are at liberty to regard a nonresident plaintiff suing in the state court, and against whom a demand is preferred in the form of a counterclaim, as a defendant, within the meaning of the statute, then the cause is removable, * * * I am strongly inclined to the opinion that the latter view is permissible, and that it ought to be adopted. * * * A counterclaim certainly creates a controversy in which the original plaintiff occupies the attitude of a defendant. It is in reality a cross-action, which often involves an inquiry into transactions wholly distinct from those which furnish the basis of the original suit, and in such cross-action a judgment may be rendered against the original plaintiff to any amount. It frequently occurs in practice that the entire controversy turns on the counterclaim, the original cause of action stated in the petition being practically confessed. The right to plead matters by way of counterclaim has been so much enlarged by the Code of Procedure now in force in many states that it will often happen, as in this case, that a nonresident plaintiff,...