Purcell v. British Land & Mortgage Co.

• Decision Date: 16 May 1890
• Citation: 42 F. 465
• Parties: PURCELL v. BRITISH LAND & MORTGAGE CO., Limited.
• Court: U.S. District Court — District of Kansas

42 F. 465

PURCELL v. BRITISH LAND & MORTGAGE CO., Limited.

United States Circuit Court, D. Kansas.

May 16, 1890

John E Hessin, W. P. Douthitt, and Rankin Mason, for plaintiff.

Johnson Martin & Keeler and T. S. Brown, for defendant.

FOSTER J.

This case was removed to this court from the district court of Riley county, on the application of the defendant, on the ground that it is a foreign corporation and non-resident of the state; and the plaintiff, who is a citizen of the state of Kansas, now moves for an order remanding the same to the state court. The ground on which the motion is made is that the defendant is a resident of this state, and, therefore not entitled to remove the cause. The more formal manner of proceeding under a plea in abatement to the jurisdiction of the court is waived, and the matter submitted on motion and affidavits. The facts as to the organization and business of the defendant company are briefly these: It is a corporation organized under the laws of Great Britain and Ireland, with its head-quarters or chief office in London. It is now engaged in loaning money on real and personal property in Kansas, with its place of business and office at Manhattan and under charge of Stewart J. Hogg, a subject of Great Britain. It has no other place of business in this country. The first section of the act of 1888 (25 St.U.S. 434) confers jurisdiction on this court, as follows:

'That the circuit courts of the United States shall have original cognizance, concurrent with the courts of the several states, of all suits of a civil nature, at common law or in equity, where the matter in dispute exceeds, exclusive of interest and costs, the sum or value of two thousand dollars, * * * in which there shall be * * * a controversy between citizens of a state and foreign states, citizens, or subjects. * * * And no civil suit shall be brought before either of said courts (circuit or district) against any person, by any original process or proceeding, in any other district than that whereof he is an inhabitant; but, where the jurisdiction is founded only on the fact that the action is between citizens of different states, suits shall be brought only in the district of the residence of either the plaintiff or the defendant.'

In section 2 the second clause of the removal act reads as follows:

'Any other suit of a civil nature, at law or in equity, of which the circuit court of the United States are given jurisdiction by the preceding section, and which are now pending, or which may hereafter be brought, in any state court, may be removed into the circuit court of the United States for the proper district by the defendant or defendants therein, being non-residents of that state.'

Under this provision the right of removal from the state court has two essential limitations: First, it must be a suit of which the circuit courts are given jurisdiction by the first section; second, the right of removal is limited to the defendant who is a non-resident of the state. This is an action of which the circuit courts are given jurisdiction, as it is a controversy between a citizen of Kansas and a citizen or subject of a foreign state. It has been judicially determined that for the purposes of jurisdiction a foreign corporation is a subject of the state under which it has its corporate existence. Railroad Co. v. Letson, 2 How. 497; Terry v. Insurance Co., 3 Dill. 408. This being a suit between a citizen and an alien, and not between citizens of different states, the plaintiff insists, under the act of 1888, that it could not have been brought originally in this court unless the defendant is an inhabitant; in other words, that this court could have no original jurisdiction of this case unless the defendant is an inhabitant of this district; and, if it is an inhabitant, it cannot be a non-resident, and hence is not entitled to remove the case. This argument would be quite conclusive if the inhibition against bringing suit in any other district was jurisdictional; but it does not appear to be so, although in the early case of Yuba Co. v. Mining Co., 32 F. 183, the court seems to favor that view. The clause giving jurisdiction precedes the clause fixing the situs of the suit, and is general in its terms, and irrespective of the locality where the suit shall be brought, and the removal clause says, 'any other suit * * * of which the circuit courts of the United States are given jurisdiction by the preceding section;' not the circuit court of a particular district. The court having jurisdiction of the subject-matter and the parties, the right to object to being sued in any other district is personal to the defendant, and he may object or waive as he chooses. Zambrino v. Railroad Co., 38 F. 459; Cooley v. McArthur, 35 F. 372; Meyer v. Herrera, 41 F. 65; Ex parte Schollenberger, 96 U.S. 369. The matter of residence or inhabitancy is largely a matter of intention. A person may live but a day in a certain locality, and be an inhabitant or resident; while he might live there many days, and become neither. The intentions of parties are not always apparent to the world, but the party himself may concede inhabitancy by simply being found in this district.

The question, then, to be determined on this motion is whether the defendant is a resident or a non-resident of this state within the meaning of the removal act. The use of the word 'non-resident' in the act...