Robinson v. Attapulgus Clay Co.

• Decision Date: 07 January 1937
• Docket Number: 25819.
• Citation: 189 S.E. 555,55 Ga.App. 141
• Parties: ROBINSON v. ATTAPULGUS CLAY CO.
• Court: Georgia Court of Appeals

189 S.E. 555

55 Ga.App. 141

ROBINSON v. ATTAPULGUS CLAY CO.

No. 25819.

Court of Appeals of Georgia, First Division

January 7, 1937

Syllabus by the Court.

1. A suit filed in the city court of Bainbridge to which the defendant answers and pleads to the merits without filing a petition to remove the case to the federal court because of the amount sued for and the diversity of citizenship, will not prevent the defendant, where such action in the city court of Bainbridge is dismissed and then recommenced in the superior court of Decatur county, from filing in the superior court his petition for removal to the federal court.

2. An action between citizens of different states begun in a court of this state, the defendant being a nonresident of this state, is removable by the defendant to the federal District Court of the district in this state in which such suit is pending. The decision in Pullman Co. v. Sutherlin, 24 Ga.App. 430, 101 S.E. 314, being based on the decision in Re Wisner, 203 U.S. 449, 27 S.Ct. 150, 51 L.Ed. 264 and the Wisner Case having been expressly overruled by the decision in Lee v. Chesapeake & Ohio Ry., 260 U.S 653, 43 S.Ct. 230, 67 L.Ed. 443, will not be further followed.

3. The court did not err in overruling the demurrer and in directing that the case be removed to the federal District Court of the district where the suit was pending.

Error from Superior Court, Decatur County; B. C. Gardner, Judge.

Action by W. S.C. Robinson against the Attapulgus Clay Company wherein the defendant filed a petition to remove the case to the federal court. To review a judgment overruling her demurrer to the petition for removal, the plaintiff brings error.

Affirmed.

H. B Spooner and J. C. Hale, both of Bainbridge, for plaintiff in error.

M. E. O'Neal and A. B. Conger, both of Bainbridge, for defendant in error.

GUERRY Judge.

Mrs. Robinson filed suit in the city court of Bainbridge against the Attapulgus Clay Company and obtained a judgment. A motion for new trial was made and granted. The plaintiff then dismissed the action in the city court of Bainbridge and brought it in the superior court of Decatur county. The Attapulgus Clay Company filed a petition to remove the case to the federal court on the ground that it was a citizen of the state of Delaware and the amount sued for was in excess of $3,000. To the petition for removal the plaintiff filed a demurrer and also an answer. The demurrer complained that the facts set out in the petition were insufficient to cause a removal; that the petition for removal did not allege the state of which plaintiff was a citizen, but merely alleged that Mrs. Robinson "was on the date of the filing of her suit and now is either a resident (italics ours) of the State of Florida, or a resident of the State of Georgia, temporarily residing in the State of Florida," and that the general allegation, "the petitioner herein and the Attapulgus Clay Company were residents and citizens of different States," was a mere conclusion of the pleader. The answer alleged the facts set out above in reference to the filing of the original suit in the city court of Decatur county. The court passed an order removing the case to the federal court and the plaintiff excepted.

1. We will discuss first the contention that the defendant having filed no petition to remove in the city court of Bainbridge, and this being the same suit, it may not now file such a petition; that having appeared and pleaded in the city court of Bainbridge, the defendant has waived its right to have the case removed for diversity of citizenship. If the present case was the case in the city court of Bainbridge, we would be inclined to agree. However, Code, § 3-808, provides that "If a plaintiff shall be nonsuited, or shall discontinue or dismiss his case, and shall recommence within six months, such renewed case shall stand upon the same footing, as to limitation, (italics ours) with the original case." The above section merely tolls the statute of limitations, but does not prevent the defendant from filing such proceedings as he may deem best as against the recommenced action. An amended petition will open a petition to a general demurrer, and a suit which has been dismissed and renewed, even in the same court, may be demurred to on renewal, although no demurrer was interposed in the original action. A plaintiff, on renewal, may allege additional facts or contentions, and the defendant likewise can interpose such defensive pleadings as he may deem best. The suit having been recommenced in the superior court may have interposed thereto affirmative equitable defenses to which it would not have been subject in the city court of Bainbridge. A number of physical precedents may be cited, where a petition for removal was granted to a renewed or recommenced suit. Evans v. Sioux City Service Co. (D.C.) 206 F. 841; Warax v. Cincinnati, etc., R. Co. (C.C.) 72 F. 637; Johnson v. Blackwood Lumber Co., 189 N.C. 81, 126 S.E. 165; Chesapeake, O. & S.W. Ry. Co. v. Hendricks, 88 Tenn. 710, 13 S.W. 696, 14 S.W. 488; Arrowsmith v. Nashville & D. R. Co. (C.C.) 57 F. 165. So far as the right of removal was concerned, the renewed or recommenced suit in the present case was in the same position as the original suit.

2. Plaintiff in error insists that there is no sufficient allegation as to diversity of citizenship; that it is necessary to allege what state the plaintiff is a citizen of, as well as the state where the defendant has its citizenship; that the allegation that plaintiff is a resident of the state of Florida or a resident of the state of Georgia is insufficient.

It is true that the allegation of residence is not an allegation of citizenship (Continental Life Ins. Co. v. Rhoads, 119 U.S. 237, 7 S.Ct. 193, 30 L.Ed. 380; Everhart v. Huntsville College, 120 U.S. 223, 7 S.Ct. 555, 30 L.Ed. 623; Galveston, etc., Co. v. Gonzales, 151 U.S. 496, 14 S.Ct. 401, 38 L.Ed. 248; Hinman v. Barrett [D.C.] 244 F. 621; Harding v. Standard Oil Co. [C.C.] 182 F. 421), and to allege that the plaintiff is a resident of the state of Georgia is not sufficient to show his citizenship in this state. In Neel v. Pennsylvania Co., 157 U.S. 153, 15 S.Ct. 589, 39 L.Ed. 654, cited by counsel for plaintiff in error, it is said "The allegation, in the petition for a removal of a cause that the plaintiff 'is a resident of the state of Ohio in the county of Richland' is not sufficient to show his citizenship in that state; and the additional allegation 'that the matters in controversy in this suit are wholly between citizens of different states' is an unauthorized conclusion of law from such facts." In Grace v. American Central Ins. Co., 109 U.S. 278, 279, 3 S.Ct. 207, 27 L.Ed. 932, also cited by plaintiff in error, it is said "The doctrine reaffirmed that when jurisdiction of the circuit court depends upon the citizenship of the parties, such citizenship, or the facts which in legal intendment constitute it, must be distinctly and positively averred in the pleadings, or appear * * * with equal distinctness in other parts of the record. An averment that parties reside, or that a firm does business, in a particular state, or that a firm is 'of' that state, is not sufficient to show citizenship in such state." An even stronger statement of the principle was made in Cameron v. Hodges, 127 U.S. 322, 8 S.Ct. 1154, 32 L.Ed. 132: "It is not sufficient, to give jurisdiction to a Circuit Court of the United States, that the defendant in the suit is a citizen of the State, and that none of the complainants were citizens of that State. The adverse party must be a citizen of some other named State, or an alien. * * * A distinct statement of the citizenship of the parties, and of the particular State in which it is claimed, is required, in order to sustain the jurisdiction of the circuit court."

It may be well to consider the reason for these rules of exact and distinct averment of citizenship of the parties to an action. 28 U.S. C.A. § 112 provides "No civil suit shall be brought in any district court against any person by any original process [italics ours] 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, suit shall be brought only in the district of the residence of either the plaintiff or the defendant." Jurisdiction itself is a term that is defined to be "the power of hearing and determining causes and doing justice in matters of complaint." Wright v. State, 16 Ga.App. 216, 84 S.E. 975. "The jurisdiction of a court is determined by its power or its lack of power to deal with a plaintiff's petition." Garfield Oil Mills v. Stephens, 16 Ga.App. 655, 85 S.E. 983, 986. "A court of competent jurisdiction is one that has jurisdiction both of the person and the subject-matter." English v. Central of Ga Ry. Co., 7 Ga.App. 263, 66 S.E. 969. Jurisdiction refers to the power of the court over the subject as well as the person. The power of the court over the subject-matter is a sine qua non to a valid judgment, and may not be waived by consent of the parties. Jurisdiction over the person is a personal plea and may be waived. In the cases cited, as well as in numbers of other cases, the U.S. C.A. section quoted above has been construed to mean that even in cases transferred to the federal courts because of diversity of citizenship, before the federal court will entertain jurisdiction it must affirmatively appear, not only that the defendant, who alone had power to petition the state court for a...