Pooley v. Luco

• Decision Date: 24 February 1896
• Docket Number: 657.
• Citation: 72 F. 561
• Court: U.S. District Court — Southern District of California
• Parties: POOLEY v. LUCO et al.

72 F. 561

POOLEY v. LUCO et al.

No. 657.

United States Circuit Court, S.D. California.

February 24, 1896

Allen &amp Flint, for complainant.

Willoughby Cole, for defendant, Luco.

WELLBORN District Judge.

One of the defendants, Juan M. Luco, pleads to the jurisdiction of the court, and the question now to be determined is as to the sufficiency of this plea. The suit is brought by the complainant, a subject of Great Britain, against said Luco and various other parties, alleged to be citizens of the United States, to foreclose a mortgage executed by said Luco and others of the defendants, on certain real estate situated in the county of San Diego, in the Southern district of California. Said Luco denies that he is a citizen of the United States, and alleges that he is a citizen of Chile, and the duly-appointed and recognized consul general of Chile for the United States, residing in the city of San Francisco state of California.

Jurisdiction if it exists at all, must rest upon one or more of the following grounds: First, diverse citizenship of the parties; second, consular status of defendant Luco; third, location in this district of the res,-- the mortgaged property. These grounds I will examine in the order of their statement.

1. The question whether or not a circuit court has jurisdiction of a case, on the ground that both parties are aliens, has been authoritatively and often decided in the negative. Montalet v. Murray, 4 Cranch, 46; Hodgson v. Bowerbank, 5 Cranch, 304; Prentiss v. Brennan, Fed. Cas. No. 11,385; Jackson v. Twentyman, 2 Pet. 136; Rateau v. Bernard, Fed. Cas. No. 11,579; Hinckley v. Byrne, 1 Deady, 224, Fed. Cas. No. 6,510.

In this last case, Deady, J., used the following language:

'It has long since been settled that an action between aliens only cannot be maintained in the circuit court; that the language of the judiciary act giving jurisdiction where 'an alien is a party' must be restrained within the terms of the constitution, which only 'extends the judicial power' to an action between an alien and a citizen of a state of the United States. When both plaintiff and defendant are aliens, the judicial power of the United States does not extend to the case.'

The controversy in the case at bar being between aliens, there is not such diverse citizenship as brings the case within the federal jurisdiction.

2. Has the court jurisdiction because of the consular status of the defendant? In his opening brief, plaintiff contends that 'the circuit court of the United States has jurisdiction, concurrent with the district court, in cases affecting consuls'; citing Bors v. Preston, 111 U.S. 252, 4 Sup.Ct 407. I have examined the case cited carefully, and so far from supporting, it seems to me antagonistic to complainant's contention. In that case the plaintiff was a citizen of New York, and the defendant consul, at the port of New York, for the kingdom of Norway and Sweden; but the latter's citizenship did not affirmatively appear, either in the pleading or elsewhere in the record. The ruling of the court was to the effect that, inasmuch as the complainant was a citizen of New York, jurisdiction must depend upon the alienage of the defendant; and, further, that such alienage could not be inferred from the fact that the defendant held and exercised the office of consul of a foreign government, and, therefore, that the record 'did not present a case which the circuit court had authority to determine.' Since the consular character of the defendant was one of the prominent facts in the case, the decision necessarily holds that the fact of a defendant being a consul of a foreign government does not confer jurisdiction upon the circuit court. The opinion, however, declares that, where there is a controversy between a citizen and as alien, jurisdiction is not defeated by the fact that the alien happens to be the counsel of a foreign government.

The other case cited by plaintiff (Valarino v. Thompson, 7 N.Y. 576) seems to me to be also strongly against his contention. While the points there decided were: 'A consul of a foreign government, residing in the United States, is not liable to be sued in the state courts. * * * The fact that the consul is impleaded with a citizen upon a joint contract will not give jurisdiction to the state courts,'-- yet the decision was based upon the ground that the district court of the United States had jurisdiction of the cause, exclusive of the state courts. Nowhere in the opinion is there even an intimation of jurisdiction in the circuit court.

In Lorway v. Lousada, 1 Lowell, 77, Fed. Cas. No. 8,517, also cited by plaintiff, the action was pending in the district court, and the decision was simply to the effect that that court, not the circuit court, had jurisdiction. The first paragraph of the syllabus is as follows:

'The district court has jurisdiction of a suit brought by an alien against the consul of his nation, residing within the district, to recover the amount of official fees improperly exacted.'

The Havana, 1 Sprague, 402, Fed. Cas. No. 6,226, another of plaintiff's citations, was a case also in the district court, and in admiralty. The discretionary power to hear and determine a cause, there asserted, rests upon a rule of law peculiar to admiralty, and confined to the district court.

In Lorway v. Lousada, supra, the rule is expressed thus:

'Courts of admiralty, it is true, exercise a considerable latitude of discretion in entertaining suits between strangers; and they are guided to some extent in the particular case by the nature of the controversy, whether it involves a question of general law or only the local law of the foreign country. This distinction, perhaps, arose out of the great diffidence with which courts of admiralty in England were formerly accustomed to approach questions of local law, whether domestic or foreign. However this may be, it is now the better opinion, in this country at least, that where circumstances make it either necessary or highly convenient that the jurisdiction should be retained, as, for instance, when the voyage of a foreign vessel is broken up here, a court of admiralty will take the case, whether the law which it will be bound to administer happen to be local or general. In short, the question is one of discretion in the exercise of an admitted power, and not of the power itself. See, per Taney, C.J., Taylor v. Carryll, 20 How. 611; The Havana, 1 Sprague, 402, Fed. Cas. No. 6,226; The Wilhelm Frederick, 1 Hagg.Adm. 138; Patch v. Marshall, 1 Curt. 452, Fed. Cas. No. 10,793; The Jerusalem, 2 Gall. 191, Fed. Cas. No. 7,293; notes to 2 Pars.Mar.Law, bk. 3, c. 3. And the remark of Mr. Justice Curtis in Patch v. Marshall, 1 Curt. 455, Fed. Cas. No. 10,793, is to be understood, I have no doubt, in reference to a court of admiralty and its jurisdiction, which alone was involved in that case.'

No case has been brought to my attention where it has been held, or even intimated, that the consular character of a party to the controversy gives jurisdiction to the circuit court. Nor do I believe that such a precedent can be found. There is no statutory provision conferring upon the circuit court jurisdiction on the ground indicated, while the jurisdiction seems to be granted, in terms, to the district courts. Rev St. U.S. Sec. 563,...