Robert v. Pineland Club

• Decision Date: 04 August 1905
• Parties: ROBERT et al. v. PINELAND CLUB et al. SANDERS et al. v. SAME.
• Court: U.S. Court of Appeals — Fourth Circuit

139 F. 1001

ROBERT et al. v. PINELAND CLUB et al.

SANDERS et al. v. SAME.

United States Circuit Court, D. South Carolina.

August 4, 1905

C. J Colclock and A. McS. Bostick, for plaintiffs Robert and others.

Jas. A Harley, for plaintiffs Sanders and others.

W. S Smith, W. B. De Loach, and Smythe, Lee & Frost, for defendants.

BRAWLEY District Judge.

1. It is contended that, inasmuch as neither plaintiffs nor petitioning defendants are citizens of South Carolina, this court has no jurisdiction. It was so held at one time, but more recent decisions of the federal courts are to the effect that the restrictive language of the first section of the act applies only to suits commenced in the United States courts by original process, and that they have no application to suits removed from the state courts. Judge Dillon, in his work on Removal of Causes, says:

'It is now well settled that where the parties are citizens of different states, and the other conditions of removability are satisfied, the cause may be removed to the federal court, notwithstanding the fact that neither plaintiff nor defendant is a citizen or resident of the state where the suit is brought, or of the district within the territorial jurisdiction of the federal court to which it is to be transferred.'

Judge Newman, in Rome Petroleum, etc., Co. v. Hughes, etc., Co. (C.C.) 130 F. 585, reviews the decisions, quoting Judge Shiras in Fales v. Chicago, etc., R.R. Co. (C.C.) 32 F. 673:

'It seems to me that the question of federal cognizance is confounded with question of the place of bringing suit by original process. The latter question has nothing to do with the right of removal. The question whether an action might have been brought by original process in any federal court is material in order to determine whether it was a case of federal cognizance; but, that question being decided in favor of federal jurisdiction, the question of the proper place or district in which the suit might have been brought by original process is wholly immaterial on the question of removal. ' And again: 'If a suit is brought in a case of federal cognizance in a court of a state of which the defendant is not a resident, then the election is given to such nonresident defendant to carry the case by removal into the federal court.'

In Whitworth v. R.R. Co. (C.C.) 107 F. 557, Judge Evans held that a nonresident defendant, although neither plaintiff nor defendant was a citizen of the state in which suit was brought, could remove it to the federal court. Judge Newman therefore held that the case was removable.

The same question was decided by Judge Simonton, of this circuit in Virginia-Carolina Chemical Co. v. Sundry Insurance Companies (C.C.) 108 F. 452. The syllabus (No. 3) gives the substance of his decision in these words:

'An action brought by B., a Virginia corporation, under these circumstances, in the state court, against a corporation of another state, is removable into the federal court at the instance of the defendant corporation, notwithstanding that neither the defendant corporation nor the plaintiff corporation is a resident of South Carolina.'

Chief Justice Burnam, of the state Court of Appeals of Kentucky, in Ill. Central R. Co. v. Whitworth (Ky.) 73 S.W. 766, decides (March 24, 1903):

'That a suit between citizens of different states may be removed to the federal court, though neither party is a resident of the state where the suit is brought.'

Judge Keller, in Foulk v. Gray (C.C.) 120 F. 156, in a carefully prepared opinion, cites the cases on both sides and, while saying that 'the trend of authority is distinctly in favor of the proposition' that such a case is removable, holds, as there is no authority strictly binding upon him, that the court does not have jurisdiction except by consent of both parties; that while the defendant waives objection to removal the plaintiff cannot be held to have waived his right to object by bringing the suit in the state court. Judge Simonton, in the case...