Sherwood v. Newport News & M. Val. Co.

• Decision Date: 08 April 1893
• Docket Number: No 3,086.,3,086.
• Citation: 55 F. 1
• Parties: SHERWOOD et al. v. NEWPORT NEWS & M. VAL. CO. et al.
• Court: U.S. District Court — Western District of Tennessee

55 F. 1

SHERWOOD et al. v. NEWPORT NEWS & M. VAL. CO. et al.

No 3,086.

United States Circuit Court, W.D. Tennessee.

April 8, 1893

Statement by HAMMOND, Jr.:

This suit was originally commenced in the circuit court of Shelby county, Tenn. By the writ the sheriff was 'commanded to summon the Newport News & Mississippi Valley Company and the Chesapeake & Ohio Railway Company, corporations organized under the laws of other states, but doing business in Tennessee by officers and agents, * * * to answer John Sherwood & Co., a firm composed of John Sherwood and Richard Thompson;' and the declaration subsequently filed avers that 'the plaintiffs, John Sherwood and Richard Thompson composing the firms of John Sherwood & Co., and Sherwood Thompson & Co., being then engaged in the business of buying shipping, and selling cotton in bales, with offices and places of business within the city of Memphis, Tenn., Liverpool, Eng., and elsewhere, and buying largely at said Memphis for foreign shipment, on the days aforesaid made freight engagements or contracts with the defendants, who were corporations duly organized and existing under the laws of Tennessee, or other states, and with business offices and agents in Memphis, Tenn.,' while the 2d, 3d, and 4th courts of this declaration describe defendants as 'corporations organized and existing under the laws of other states, with business offices and agents in Memphis, Tenn.'

The suit was removed to this court by the defendants, their joint petition alleging 'that they are nonresidents of the state of Tennessee, and were at and before the bringing of this suit; that they are corporations, the said Newport News & Mississippi Valley Company being chartered and doing business under the laws of the state of Connecticut, and the said Chesapeake & Ohio Railroad Company being chartered and doing business under the laws of the states of Kentucky and Virginia, and were so at the bringing of this suit; that * * * plaintiffs are citizens and residents of the state of Tennessee, and were so at the bringing of this suit. ' At the term to which it was removed the plaintiffs entered their 'motion to remand to state court because removal to this court from the state court not authorized by law. ' Subsequently, 'upon argument and consideration by the court, said motion was overruled, with leave to the plaintiffs to file herein a plea in abatement, showing that they are not now, and were not at the time of the bringing of this suit, or at the time of its removal to this court, citizens of Tennessee,' whereupon they filed a plea 'in abatement of the petition for removal upon which this cause purports to have been removed from the circuit court of Shelby county, Tenn., to this court, and thereupon they say that it is not true, as stated in said petition, that said plaintiffs are, or ever were, citizens and residents of the state of Tennessee; but on the contrary they aver that at the time this suit was originally brought, and long before, and ever since, they are and were aliens and citizens and residents of Liverpool, Eng., and subjects of her majesty, the queen of Great Britain,' etc., which plea is sworn to. In support thereof, and filed with the plea, is the affidavit of one John M. Richardson, of this city, as follows: 'I am and have been the representative of the firms of John Sherwood & Co., of Memphis, Tenn., and Sherwood, Thompson & Co., of Liverpool, Eng., in their business at this point, for about four years last past. I am personally cognizant of the fact that the members of said firms are non-residents of the state of Tennessee, and are, and have been since my connection with said firms, citizens and residents of England. ' And the parties have filed a stipulation that the case 'may now be tried on the merits contained in the plea in abatement of the defendants' petition for removal; that the said issue may be tried by the court without the intervention of a jury, and that upon said trial the affidavit of J. M. Richardson, now filed herein, shall be taken and considered as his deposition, the same being the only testimony presented by either party; and that if, upon the facts found, the court is of the opinion that, under the law, said cause shall be retained, it shall so adjudge, and if it is of the opinion, under the law, that said cause shall be remanded to the state court, it shall so adjudge.'

H. C. Warimer, for plaintiffs.

Holmes Cummins and Turly & Wright, for defendants.

HAMMOND J., (after stating the facts.)

The issue of fact raised in the foregoing record by the plea in abatement is of simple solution, under the agreement, and the court has no hesitation whatever in finding that the plaintiffs, John Sherwood and Richard Thompson, are not now and were not at the bringing of this suit, and at the time of its removal to this court, citizens of the state of Tennessee, but alien subjects of the queen of Great Britain, etc., resident in England. But defendants contend that the allegations of the plea itself show just as conclusively that the suit was removable to this court as do the averments of their petition for removal, because, they say, the federal court has jurisdiction of a suit brought to it by removal from a state court equally when 'there shall be a controversy between citizens of different states' as where there is 'a controversy between citizens of a state and foreign states, citizens, or subjects,' under the late judiciary act of 1887. By the agreement of the parties here 'if upon the facts found the court is of opinion' that the case is removable, it is to be retained as though such facts were set out in the petition for removal, and no question is made as to an amendment of the petition so as to show the true facts. The question, therefore, is presented, whether a suit brought in the state court by alien plaintiffs against corporation defendants not chartered by the state in which the suit is brought can be removed to the federal court by such defendants; there being proper allegations as to the jurisdictional amount in controversy. The first section of our last judiciary act gives the United States circuit courts 'original cognizance' of the following causes: (1) Those arising under the constitution or laws of the United States, or treaties made, or which shall be made, under their authority; (2) or in which controversy the United States are plaintiffs or petitioners; (3) or in which there shall be a controversy between citizens of different states; (4) or a controversy between citizens of the same state claiming lands under grants of different states; (5) or a controversy between citizens of a state and foreign states, citizens, or subjects. And it further provides that 'no civil suit shall be brought before either of said courts, against any person, by any original process or proceeding in any other district than that whereof he is an inhabitant; but, when 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. ' Section 1, Act March 3, 1887, as corrected by Act Aug. 13, 1888, (24 St. at Large, p. 552; 25 St. at Large, p. 433; 1 Supp.Rev.St.p. 611.) Section 2 of this act, so amended, provides-- First, for the removal to the federal court, from the state court, of suits 'arising under the constitution or laws of the United States, or treaties made, * * * of which the circuit courts of the United States are given original jurisdiction by the preceding section, * * * by the defendant or defendants therein;' and, second, that 'any other suit of a civil nature, at law or in equity, of which the circuit courts 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 nonresidents of that state. ' Id. Section 1, above quoted, prescribes for the circuit courts their jurisdiction by 'original cognizance' of suits, providing certain limitations as to parties to actions brought 'by any original process or proceeding;' and, had this cause been originally commenced here, the court, probably, would have had jurisdiction of it, although not brought 'in the district of the residence of either the plaintiff or the defendant,...