Stewart v. Cybur Lumber Co.

• Decision Date: 08 July 1916
• Docket Number: 18416
• Citation: 111 Miss. 844,72 So. 276
• Court: Mississippi Supreme Court
• Parties: STEWART v. CYBUR LUMBER CO

72 So. 276

111 Miss. 844

STEWART v. CYBUR LUMBER CO

No. 18416

Supreme Court of Mississippi

July 8, 1916

APPEAL from the circuit court of Pearl River county, HON. A. E WEATHERSBY, Judge.

Suit by A. W. Stewart against the Cybur Lumber Company. From an order overruling plaintiff's demurrer to defendant's plea to the jurisdiction and his plea in abatement, plaintiff appeals.

The facts are fully stated in the opinion of the court.

Reversed and remanded.

Gex &amp Waller and Bilbo & Shipman, for appellant.

E. J Bowers and R. E. Thompson, for appellee.

OPINION

POTTER, J.

A. W. Stewart, appellant here and plaintiff in the court below, filed his suit against the Cybur Lumber Company, appellee here and defendant in the court below, in the circuit court of Pearl River county for fifty thousand dollars damages for an alleged breach of a contract between the defendant company and the plaintiff, whereby the defendant company, it is alleged, had employed plaintiff to cut, haul and deliver certain timber on its lands in Pearl River county to its mill-pond in said county and state.

The defendant made a motion for the removal of this case to the district court of the United States for the "proper district" and filed a petition setting out that the amount in dispute in this suit exceeds the sum or value of three thousand dollars exclusive of interest and cost, and that the controversy in said suit is, and at the time of the commencement of this suit was, between citizens of different states; that the defendant is a corporation chartered and organized under the laws of the state of Alabama and domiciled in the city of Mobile, and is a nonresident of the state of Mississippi; and that the plaintiff, A. W. Stewart, was then, and still is, a resident of the state of Louisiana, and with this petition the bond required by law was properly filed. The motion of the defendant company to remove this cause to the district court of the United States was heard and the motion denied by the circuit court of Pearl River county, and thirty days was granted to the defendant to plead, and the plea of general issue was filed by it in accordance with the leave granted. A motion was made by the defendant after having filed its plea of general issue to withdraw its said plea and file pleas to the jurisdiction and in abatement of said suit. The record does not show that this motion was acted on by the court.

It appears from the record that the defendant had obtained a certified copy of the proceedings in this case and had filed same, with petition, bond, etc., in the district court of the United States for the southern district of Alabama at Mobile, and notice was served on the plaintiff to appear at the district court of the United States "for the proper district" to defend said suit, and that the plaintiff did appear at the United States district court at Biloxi, Miss., the district in which Pearl River county is situated, and found that the record in the case had not been filed there. The defendant appeared at the district court in Mobile, and obtained a judgment for want of prosecution; the plaintiff being uninformed that said transcript had been removed to Mobile.

The plea to the jurisdiction and plea in abatement above mentioned were filed. Each of these last-mentioned pleas sets out the judgment of the district court of the United States for the southern district of Alabama as its basis. To each of these pleas the plaintiff filed a demurrer, upon the ground that the judgment of the district court of the United States relied upon was void because the court trying same had no jurisdiction of any sort to render said judgment. The demurrers to the pleas above mentioned were overruled.

The District Judge of the United States of the southern district of Alabama delivered a written opinion holding that, where a citizen of one state sues a citizen of another state in a third state, as in this case a citizen of Louisiana sues a citizen of Alabama in Mississippi, the suit is removable on the ground that the suit has to be brought where either the plaintiff or the defendant lives and that in this case the suit was brought where neither one lived. But it is well settled that this view is erroneous, and that a controversy between a citizen of one state and a citizen of another state in a third state is not removable.

In Ex parte Abraham C. Wisner, 203 U.S. 449, 27 S.Ct. 150, 51 L.Ed. 264, the supreme court of the United States says:

"A suit, which by reason of the nonresidence of both parties could not have been brought in the federal circuit (district) court in the first instance, cannot be removed to that court from a state court, under the acts of March, 1887, . . . on the ground of diverse citizenship, at least where the plaintiff resists such removal, even if the consent of both parties could confer such jurisdiction." Bottoms v. St. L. & S. F. R. Co. (C. C.), 179 F. 318; Waterman v. Chesapeake & O. Ry. Co. (D. C.), 199 F. 667; Hall et al. v. Great Northern Ry. Co. (D. C.), 197 F. 488; St. Louis & S. F. Ry. Co. v. Cassel-Berry (Tex. Civ. App.), 139 S.W. 1161; St. L. & S. F. Ry. Co. v. Matlock (Tex. Civ. App.), 141 S.W. 1067; St. L. & S. F. Ry. Co. v. Kiser (Tex. Civ. App.), 136 S.W. 852; Gillespie v. Pocahontas Coal & Coke Co. (C. C.), 162 F. 742; Gruetter v. Cumberland Telephone & Telegraph Co. (C. C.), 181 F. 248; Roberts v. Chicago, B. & Q. Ry. Co. (C. C.), 168 F. 316.

In rendering its judgment the federal district court at Mobile held that the Alabama defendant had a right to remove this cause under the law of the United States to the district court of his residence, and that the "proper district," in the language of section 29 of the Judicial Code, is the district where the defendant resides, and cites as authority for this holding the case of Mattison v. Boston & M. R. R. Co. (D. C.), 205 F. 821. The Mattison Case was decided by District Judge Ray of the district court of the United States for the northern district of New York, and that part of the opinion dealing with the subject under discussion is obiter dictum and is not supported by the authorities cited by him. These cases only hold that by consent of both parties a federal court held in a district other than that from which a case in a state court has been removed may acquire jurisdiction, but holding expressly that without such consent or waiver the United States courts can never acquire jurisdiction.

The plain language of section 29 of the Judicial Code, in so far as it relates to the question now under consideration, is as follows:

"Whenever any party entitled to remove any suit mentioned in the last preceding section, except suits removable on the ground of prejudice or local influence, may desire to remove such suit from a state court to the district court of the United States, he may make and file a petition, duly verified, in such suit in such state court at the time, or any time before the defendant is required by the laws of the state or the rule of the state court in which such suit is brought to answer or plead to the declaration or complaint of the plaintiff, for the removal of such suit into the district court to be held in the district where such is pending," etc.

In Hess v. Reynolds, 113 U.S. 73, 5 S.Ct. 377, 28 L.Ed. 927, Judge Miller, in passing upon the very question at issue, said:

"It is argued that the cause should have been removed to the circuit court for the western district of Michigan, instead of the eastern, because the county of Ionia, in which the suit originated, is in the former. But the language of the removal statute is that suits shall be removed into the circuit court of the district where such suits are pending. Undoubtedly this means where they are pending at the time of removal. This suit was not then pending in the western district of Michigan, but in the county of Jackson, which is in the eastern district of that state."

In Re St. John v. U. S. Fidelity & Guaranty Co. (D. C.), 213 F. 685, in passing upon this question and in answer to the contention of the defendant, who had sought to remove the case to the district court of Maryland, the suit having been brought in the state court of Montana by a citizen of a state other than Montana against a citizen of the state of Maryland, that court said:

"For forty years, therefore, persons in like case with the defendant now before the court have had the right which it seeks to exercise. Those who have sought to remove their cases have often been...