Shanberg v. Fidelity & Cas. Co. of New York

• Decision Date: 04 November 1907
• Docket Number: 2,509.
• Citation: 158 F. 1
• Parties: SHANBERG v. FIDELITY & CASUALTY CO. OF NEW YORK.
• Court: U.S. Court of Appeals — Eighth Circuit

158 F. 1

SHANBERG v. FIDELITY & CASUALTY CO. OF NEW YORK.

No. 2,509.

United States Court of Appeals, Eighth Circuit.

November 4, 1907

J. C Rosenberger (I. J. Ringolsky, on the brief), for plaintiff in error.

J. H Harkless (Charles S. Crysler and Clifford Histed, on the brief), for defendant in error.

Before VAN DEVANTER and ADAMS, Circuit Judges, and RINER, District judge.

RINER District Judge.

This was an action to recover upon an accident insurance policy. The action was originally brought in the state court, and removed by the defendant to the Circuit Court of the United States for the Western District of Missouri. The defendant answered in the case, the plaintiff filed her reply thereto and the case proceeded to trial before the court and a jury. At the conclusion of the evidence, the court directed the jury to return a verdict in favor of the defendant.

While numerous errors are assigned in the record, two, only, are relied upon here: First, the court erred in entertaining jurisdiction of the case, because it affirmatively appears from the record that neither plaintiff nor defendant was, at the time the suit was brought and tried, a citizen of the state or district in which the suit was brought, the plaintiff in error being a citizen and resident of the state of Kansas, and the defendant in error being a citizen and resident of the state of New York, therefore the case was not one which could be removed into the Circuit Court; second, that the court erred in instructing the jury to return a verdict for the defendant.

The question of jurisdiction was not raised in the court below. No objection whatever to its jurisdiction was made in that court; plaintiff voluntarily appeared, filed a reply, and proceeded in the trial without objection, the question of jurisdiction being now raised for the first time in the brief of plaintiff in error filed in this court. It is insisted that the case of Ex parte Wisner, 203 U.S. 449 ^[1] is controlling in this case, and fully sustains the contention of the plaintiff. It must be conceded that there is a statement found in the opinion of the court in that case which tends to give color to this contention, but, to determine what was really decided, we must look at the case then before the court. In that case, Wisner, a citizen of the state of Michigan, commenced an action in the state court in the state of Missouri against Beardsley, a citizen of the state of Louisiana. Beardsley filed his petition to remove the case from the state court into the Circuit Court of the United States for the Eastern Division of the Eastern District of Missouri, on the ground of diversity of citizenship, together with the bond required in such cases; an order of removal was thereupon entered by the state court, and a transcript of the record was filed in the Circuit Court. Wisner moved to remand on the ground that the Circuit Court had not acquired jurisdiction by the removal. The motion was heard and denied. Wisner then applied to the Supreme Court for leave to file a petition for mandamus, which was granted, and rules entered returnable upon a day fixed, and the case submitted on the returns to the rules. The Supreme Court held that the motion to remand to the state court should have been sustained on the ground that the Circuit Court had no jurisdiction to proceed. It will thus be seen that the Wisner Case differs materially from the case at bar, in that in that case the plaintiff took advantage of the first opportunity to raise the question of jurisdiction by presenting his motion to remand upon that ground, whereas, in this case the plaintiff not only failed to ask that the case be remanded, but voluntarily filed her reply and proceeded to trial, thus bringing the case more nearly within the principle announced by the Supreme Court in the case of Central Trust Company v. McGeorge, 151 U.S. 129, 14 Sup.Ct. 286, 38 L.Ed. 98. In the case last cited, the Central Trust Company, a corporation created by and existing under the laws of the state of New York, filed a bill in equity in the Circuit Court of the United States for the Western District of Virginia against the Virginia, Tennessee & Carolina Steel & Iron Company, a corporation created by and existing under the laws of the state of New Jersey. The defendant company entered a general appearance, and joined with the complainant in its prayer for the appointment of a receiver, without objection to the jurisdiction. Thereafter the Circuit Court dismissed the bill on the ground that under the act of March 3, 1887, c. 373, 24 Stat. 552, as amended by the Act of August 13, 1888, c. 866, 25 Stat. 433 (U.S. Comp. St. 1901, p. 508), it was without jurisdiction of the cause. The Supreme Court reversed the decree dismissing the bill, holding that exemptions from being sued out of the district of its domicile is a privilege which a corporation may waive, and which is waived by pleading to the merits; and, further, that the fact that neither the plaintiff nor the defendant resides in the district in which the suit is brought does not prevent the operation of the waiver. See, also, Ex parte Schollenberger, 96 U.S. 369, 24 L.Ed. 853; Bank v. Morgan, 132 U.S. 141, 10 Sup.Ct. 37, 33 L.Ed. 282; St. Louis & San Francisco Railway Company v. McBride, 141 U.S. 127, 11 Sup.Ct. 982, 35 L.Ed. 659; Southern Express Company v. Todd, 56 F. 104, 5 C.C.A. 432; Memphis Savings Bank et al. v. Houchens, 115 F. 96, 52 C.C.A. 176, and cases cited in note on page 192; Shaw v. Quincy Mining Company, 145 U.S. 444, 12 Sup.Ct. 935, 36 L.Ed. 768; Southern Pacific Company v. Denton, 146 U.S. 202, 13 Sup.Ct. 44, 36 L.Ed. 942. In the two cases last cited, the right of a corporation to avail itself of the exempting clause of the acts of 1887-88 was maintained, yet in both cases the defendants appeared specially and set up the right of exemption. If the plaintiff in this case had, upon its removal from the state court, filed a motion to remand on the ground that the Circuit Court was without jurisdiction, the case would clearly come within the rule announced in the Wisner Case, but, not having done so, by pleading to the merits and voluntarily...