Smellie v. Southern Pac. Co.

• Decision Date: 21 June 1912
• Docket Number: 15,450.
• Citation: 197 F. 641
• Parties: SMELLIE v. SOUTHERN PAC. CO.
• Court: U.S. District Court — Northern District of California

197 F. 641

SMELLIE v. SOUTHERN PAC. CO.

No. 15,450.

United States District Court, N.D. California.

June 21, 1912

Schlesinger & Shaw, of San Francisco, Cal., for plaintiff.

T. C Coogan and Foshay Walker, of San Francisco, Cal., for defendant.

VAN FLEET, District Judge.

This is a motion by the plaintiff to remand the cause, and the question presented is whether in an action commenced by an alien plaintiff in a state court against a citizen of the United States as defendant, who is a nonresident of the state and federal district in which the action is brought, the latter may by removal proceedings successfully invoke the jurisdiction of this court, solely on the ground that the controversy is one between an alien and a citizen of the United States, against the objection of the plaintiff duly interposed.

The same question has been frequently before the federal courts. As a result largely of divergent views as to the effect of the principles announced by the Supreme Court in the cases of Ex parte Wisner, 203 U.S. 449, 27 Sup.Ct. 150, 51 L.Ed. 264 and In re Moore, 209 U.S. 490, 28 Sup.Ct. 585, 52 L.Ed. 904, 14 Ann.Cas. 1164, the rulings of the late Circuit Courts having occasion to pass upon the question subsequent to those decisions were conflicting, several of them sustaining the jurisdiction (Barlow v. C. & N.W. Ry Co., 164 F. 765; s.c., 172 F. 513; Decker v Southern Ry. Co., 189 F. 224; Bagenas v. Southern Pacific Co., 180 F. 887), while others denied it (Mahopoulus v. C., R.I. & P. Co., 167 Fed 165; odhner v. Northern Pacific Co., 188 F. 507; Sagara v C.I. & P.R. Ry. Co., 189 F. 220); whereas prior to the promulgation of the decisions in the Wisner and Moore Cases the rulings of the Circuit Courts had been very uniformly in favor of the right of removal in such cases. Such was the decision of Judge Ross in this circuit in Stalker v. Pullman Car Co., 81 F. 989.

The correct answer to the question depends, of course, upon the terms of the grant of jurisdiction to these courts by Congress, now found in the Judicial Code (Act March 3, 1911, c. 231, 36 Stat. 1087 (U.S. Comp. St. Supp. 1911, p. 128)). That Code (section 24) gives the District Courts of the United States original jurisdiction of all suits of a civil nature, at common law or in equity, where, as here, the matter in controversy is sufficient in amount, and the suit 'is between citizens of different states, or is between citizens of a state and foreign states, citizens or subjects,' and provides (section 28) that, when commenced in a state court, any such suit 'of which the District Courts of the United States are given original jurisdiction by this title * * * may be removed by the defendant or defendants therein to the District Court of the United States for the proper district. ' Section 51 then provides that, with certain exceptions not here involved, 'no civil suit shall be brought in any District Court 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, suit shall be brought only in the district of the residence of either the plaintiff or the defendant. ' These are the pertinent features of the Code bearing upon the subject.

In construing these provisions as they previously existed in the Judiciary Act and the acts amendatory thereof, and wherein the codification has made no change affecting present consideration, the Supreme Court, in Ex parte Wisner, supra, following in that respect its previous decisions, held that no suit which could not have been commenced originally in the Circuit Court could be removed thereto from the state court; and that as a consequence, by reason of the limiting effect of the proviso now found in section 51, in an action commenced in a state court by a citizen of another state against a defendant, nonresident of the state in which the action was brought, and who was a citizen of a state other than that of the plaintiff, the defendant could not by removal proceedings confer jurisdiction upon the Circuit Court of the United States, even though both plaintiff and defendant should acquiesce in such removal. The doctrine of that case was, however, modified in the subsequent case of In re Moore, supra, wherein it was held that, such a case being within the general grant of jurisdiction conferred upon those courts by the Judiciary Act, the further provision requiring the suit to be brought 'only in the district of the residence of either the plaintiff or the defendant' was, under repeated rulings of that court, to be construed as a personal privilege for the benefit of the parties, which may be waived; the court saying:

'The contention is that as this action could not have been originally brought in the Circuit Court for the Eastern District of Missouri by reason of the last provision quoted from section 1 (Act March 3, 1875, c. 137, 18 Stat. 470 as amended by Act March 3, 1887, c. 373, corrected by Act Aug. 13, 1888, c. 866, 25 Stat. 433 (U.S. Comp. St. 1901, p. 508)), it cannot under section 2 be removed to that court, as the authorized removal is only of those cases of which by the prior section original jurisdiction is given to the United States Circuit Courts. But this ignores the distinction between the general description of the jurisdiction of the United States courts and the clause naming the particular district in which an action must be brought.'

And, quoting from Ex parte Schollenberger, 96 U.S. 369, 24 L.Ed. 853, it was said:

''The act of Congress prescribing the place where a person may be sued is not one affecting the general jurisdiction of the courts. It is rather in the nature of a personal exemption in favor of a defendant, and it is one which he may waive. If the citizenship of the parties is sufficient, a defendant may consent to be sued anywhere he pleases, and certainly jurisdiction will not be ousted because he has consented.''

And it was, in effect, held, after a full review of the authorities bearing on the subject, that, in a case of diversity of citizenship, the bringing of an action in the federal court of the wrong district by the plaintiff, and the appearance of the defendant therein and pleading to the merits, without interposing any objection to the jurisdiction, is to be regarded as a distinct waiver of this privilege on the part of both parties; so that the court, having general jurisdiction of the controversy, acquires by such waiver jurisdiction of the parties as well, and is thus clothed with full jurisdiction in the premises. And it was likewise held that the bringing of such an action in a state court of the wrong district, and its subsequent removal by the defendant to the federal court of such district, without timely objection thereto by the plaintiff, is equally to be regarded as a waiver by both parties of any objection to the jurisdiction of the latter court; the defendant evidencing such waiver by the proceedings for removal, and the plaintiff by going to the merits without objection, so that in such a case the federal court acquires complete jurisdiction.

In other words, the effect of that case is that, while the objection of want of jurisdiction of the controversy cannot be waived, that of the right to have the action brought in a particular district may and will be considered waived under circumstances such as indicated; but that, unless the acts of the parties are such as to evidence a waiver of the objection by both, no jurisdiction obtains. See, also, the later cases of Western Loan, etc., Co. v. Butte Mining Co., 210 U.S. 368, 28 Sup.Ct. 720, 52 L.Ed. 1101; Kreigh v. Westinghouse, etc., Co., 214 U.S. 249, 29 Sup.Ct. 619, 53 L.Ed. 984.

It was largely in the application of what was assumed to be the effect of the principles announced in these cases that the conclusion was reached by the Circuit Courts in the cases above referred to holding that in a case like the present the Circuit Court does not obtain jurisdiction against the consent of the alien plaintiff; that is, that an alien equally with a citizen of the United States has a right to interpose such objection.

But it is to be observed that in both the Moore and Wisner Cases and the later ones above cited as well, the controversy was between citizens of different states of the United States, and not between an alien and a citizen of the United States. In the case of In re Hohorst, 150 U.S. 653, 14 Sup.Ct. 221, 37 L.Ed. 1211, the Supreme Court, construing these same provisions then found in the act of 1887, held that they had no application to...