Pringle v. Storrow

• Decision Date: 30 June 1926
• Citation: 153 N.E. 26,256 Mass. 561
• Parties: PRINGLE v. STORROW et al.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

256 Mass. 561

153 N.E. 26

PRINGLE

v.STORROW et al.

Supreme Judicial Court of Massachusetts, Norfolk.

June 30, 1926.

Appeal from Superior Court, Norfolk County; Frederick Lawton, Judge.

Action of contract or tort by John M. Pringle against James J. Storrow and others for alleged negligent advice given by defendants. From orders of the superior court approving bonds and allowing removal of the action to the District court of the United States, plaintiff appeals. Orders reversed.

1. Removal of causes k107(4).

The federal court on motion to remand is appropriate tribunal to determine whether petition for removal should have been brought by nonresident defendant or defendants or by all defendants.

2. Removal of causes k89(2).

In petition for removal, the Supreme Judicial Court is bound by allegations of fact of petitions and record.

3. Removal of causes k16.

Right of removal of cause to the federal court is statutory, and can be exercised only in strict accord with the Judicial Code (U. S. Comp. St. s 968 et seq.).

4. Removal of causes k26-Action begun by alien in state court against resident and nonresident defendants held not removable; actions ‘between citizens of different states' not applying to aliens (Jud. Code [U. S. Comp. St. s 968 et seq.]).

Action, not arising under Constitution of the United States or treaty, begun by alien in state court against resident and nonresident defendants is not removable to federal court under Judicial Code (U. S. Comp. St. s 968 et seq.), ‘citizens of different states' as used therein meaning, in view of section 24 (section 991), citizens of states of the United States, and not applying to aliens.

[Ed. Note.-For other definitions, see Words and Phrases, First and Second Series, Citizen.]

5. Removal of causes k29.

Where residents and nonresidents are joined as defendants, the court will deal with them as an entity and treat them all as residents for purpose of jurisdiction.

6. Removal of causes k26.

An alien as plaintiff may sue in state or federal courts, and can be deprived of his chosen forum in state courts only if statutes of the United States so authorize.

S. L. Whipple and E. C. Park, both of Boston, for appellant.

C. F. Choate, Jr., of Boston, for appellees.

WAIT, J.

The plaintiff appeals from orders of the superior court approving bonds and allowing the removal of an action to the District Court of the United States for the District of Massachusetts.

The defendants named in the writ are the eleven members of a copartnership doing business at Boston, of whom six are citizens and residents of Massachusetts; two are citizens and residents of New York; two are citizens and residents of Illinois; and one a citizen and resident of Florida. Service has been made only upon the six residents of Massachusetts.

The plaintiff describes himself in the writ as ‘of Weston in the county of Middlesex,’ and no other description appears in the record. The defendants have made appropriate special appearances for the purpose of praying removal. The writ, dated December 16, 1925, is returnable in the county of Norfolk, the residence of two of the defendants. The cause of action is contract or tort. The declaration claims damage for loss resulting from negligent and unskillful advice given by the defendants, their servants and agents, acting for the copartnership.

Three petitions for removal have been filed, one by defendant Shaw, a citizen and resident of Massachusetts; one by the remaining defendants; and one by the citixens of New York, Illinois and Florida-all the defendants who are nonresidents of Massachusetts. An appropriate bond was filed with each petition.

It is agreed, as we understand, that if it is the better form, the petition of defendant Shaw, although presented separately, may be taken as part of the petition of the resident and nonresident defendants. All the bonds and petitions were approved and allowed.

[1] The view which we take upon the merits makes it unnecessary to pass upon the technical question, whether the petition by one resident defendant, by all the nonresident defendants, or by all the defendants, resident and nonresident,is the proper form of petition. If the action remains in the courts of Massachusetts the form of these unsuccessful petitions is not material. Should it properly have been removed, the District Court of the United States is an appropriate tribunal to determine the preferable form, upon a motion to remand.

[2] In this proceeding we are bound by the allegations of fact of the petitions and the record. Commonwealth v. Norman, 249 Mass. 123, 144 N. E. 66;Eaton v. Walker, 244 Mass. 23, 138 N. E. 798.

[3][4] There is no dispute that the plaintiff is an alien, a subject of King George V of Great Britain. Though commorant at Weston, he is not a citizen of Massachusetts. The essential question is, whether an action which might originally have been brought in the District Court of the United States can be removed thither if begun by an alien in a court of this commonwealth. The right is purely statutory. Little York Gold Washing & Water Co. v. Keyes, 96 U. S. 199, 24 L. Ed. 656,and can be exercised only in strict accord with the statute conferring it.

Section 28 of the Judicial Code (U. S. Comp. St. § 1010), so far as it is material here, provides:

‘* * * 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. And when in any suit mentioned in this section there shall be a controversy which is wholly between citizens of different states, and which can be fully determined as between them, then either one or more of the defendants actually interested in such controversy may remove said suit into the District Court of the United States for the proper district.’

The first clause of this section which is not quoted, has no application here. The suit does not arise under the Constitution or laws of the United States or under any treaty. Likewise the second of the two sentences above quoted does not apply, for this suit is not ‘wholly between citizens of different states.’ The words ‘citizens of different states' as used in the statutes embodied in the Judicial Code (U. S. St. 1911, c. 231, [256 Mass. 564]36 U. S. St. at Large, 1087 [U. S. Comp. St. § 968 et seq.]), mean citizens of states of the United States, and do not apply to aliens who are citizens of any state other than of the United States. This is made manifest by the language of section 24 (section 991) which, in dealing with the jurisdiction of the United States courts, provides specifically and separately for controversies which are between ‘citizens of different states' and those between ‘citizens of a state and foreign states, citizens, or subjects.’ King v. Cornell, 100 U. S. 395, 1 S. Ct. 312, 27 L. Ed. 60;Compania Minera v. American Metal Co. (D. C.) 262 F. 183;Creagh v. Equitable Life Assurance Co. of U. S. (C. C.) 88 F. 1.

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