Wahl v. Franz

• Decision Date: 12 March 1900
• Docket Number: 1,293.
• Parties: WAHL v. FRANZ.
• Court: U.S. Court of Appeals — Eighth Circuit

100 F. 680

WAHL v. FRANZ.

No. 1,293.

United States Court of Appeals, Eighth Circuit.

March 12, 1900

J. B Wood and J. P. Henderson, for plaintiff in error.

G. B Rose (U. M. Rose, W. E. Hemingway, and J. M. Harrell, on the brief), for defendant in error.

On the 9th day of December, 1895, Joseph Molen died at Hot Springs Ark. On the 24th day of the same month Adele Wahl presented to the clerk of Garland county, Ark., a paper purporting to be the last will and testament of Joseph H. Molen, by the terms of which she became the sole devisee, after the payment of the debts and funeral charges. This will was proven before the clerk of the probate court, in vacation, and a certificate of probate granted to her, subject to the confirmation or rejection of the court, as provided by section 7422, Sand. & H. Dig. St. Ark. On the same day that the will was presented, Adele Wahl filed her petition in the probate court of Garland county, in which she stated the death of the deceased, the existence of a will, its probate before the clerk in vacation, and that no executor was provided for in the will, and that she was the sole devisee. She also alleged that no administrator had been appointed and prayed the court for letters of administration with the will annexed. On the 28th day of the same month Mary E. Franz filed her petition in the probate court of Garland county, Ark., in which she set forth, among many other things, that she was a sister of Joseph H. Molen, and his sole heir at law, and denied that the instrument propounded by the said Adele Wahl was the last will and testament of the deceased, Joseph H. Molen. She alleged, also, that the said Joseph H. Molen was, at the time he signed the said pretended will, under the undue influence of the said

Adele Wahl, whereby he was deprived of his volition, and for this, among other reasons, prayed that the will be set aside and rejected. On the 8th day of January Adele Wahl responded to this petition, denying the material allegations contained therein. The probate court, after hearing the testimony, confirmed the action of the clerk in vacation, and admitted the will to record adjudging it to be the last will and testament of the said Joseph H. Molen, deceased. From this judgment of the court probating the will the said Mary E. Franz, in due form and in apt time, took an appeal to the circuit court of Garland county, Ark., as provided by the statutes of that state. While the cause was pending on appeal in said court, to wit, on the 12th day of May, 1897, Mary E. Franz filed her petition and bond in the circuit court of the United States for the Western division of the Eastern district of Arkansas to remove the cause into said court on the ground of local prejudice, alleging that by reason thereof she could not obtain justice in the circuit court of Garland county, or in any other state court to which, under the laws of the state of Arkansas, the cause might be removed. In her petition she avers that the suit or controversy is of a civil nature, involving more than $2,000, exclusive of interest and costs, and is wholly between citizens of different states, and which can be fully determined as to them, to wit, a controversy between the said Mary E. Franz, who avers that at the time of the commencement of this proceeding she was, and still is, a resident of the state of Ohio, and that said Adele Wahl, proponent of said will, was then, and still is, a citizen of the state of Arkansas. She alleges that the said Adele Wahl is not legally entitled to inherit from the said deceased, but is the sole devisee in said will; and also that she (Mary E. Franz) is the sister and sole heir at law of the said deceased, who died without issue. She also sets up the proceedings had in the probate court of Garland county, her appeal therefrom to the circuit court, where the same was then pending, and that no order of court had been made directing an issue of devisavit vel non to be submitted to a jury, and that the said Adele Wahl and herself are actually interested in said controversy. Adele Wahl appeared in said United States circuit court, and filed a response to the petition for removal. After hearing the same, the court adjudged that the cause was removable, and that the statute regulating removals had been complied with, and retained jurisdiction of the cause. A jury was called, and the case was tried upon its merits. The jury returned a verdict finding the issues for the contestant, and that the will was executed under undue influence, and thereupon a judgment was rendered that the instrument of writing was not the last will and testament of Joseph H. Molen; that the application to admit it to probate as such be denied, the judgment of the probate court of Garland county admitting it to probate be set aside and annulled, and that the contestant recover of the proponent all her costs in that behalf expended, and that a copy of the judgment be certified to the probate court of Garland county for action in pursuance thereof. Motions for a new trial and arrest of judgment were filed and overruled. A bill of exceptions was tendered in apt time, duly signed, a writ of error sued out, and the case is now before this court for review. Any other facts that may be necessary for the determination of this case will appear in the opinion.

Before CALDWELL and SANBORN, Circuit Judges, and ROGERS, District Judge.

ROGERS District Judge, after stating the case as above, .

In Railroad Co. v. Davidson, 157 U.S. 201, 15 Sup.Ct. 563, 39 L.Ed. 672, it was distinctly held that under section 2 of the act of March 3, 1887, as corrected by the act of August 13, 1888 (25 Stat. 433), the jurisdiction of a United States circuit court, on removal by the defendant from a state court, is limited to such suits as might have been originally brought in the United States circuit court by the plaintiff under the first section of that act. All the courts have followed that decision, which is now the settled law. It is also decided in the same case that 'the question is a question of jurisdiction, as such, and cannot be waived;' citing Capron v. Van Noorden, 2 Cranch, 126, 2 L.Ed. 229; Railway Co. v. Swan, 111 U.S. 379, 4 Sup.Ct. 510, 28 L.Ed. 462; Metcalf v. Watertown, 128 U.S. 586, 9 Sup.Ct. 173, 32 L.Ed. 543. The question, therefore, which arises on the very threshold of this case is, was it removable from the Garland circuit court to the United States circuit court for the Western division of the Eastern district of Arkansas? The decision of that question turns upon the construction to be placed upon sections 1 and 2 of the corrected act of August 13, 1888 (25 Stat. 433). The portions of those sections of that act defining the jurisdiction of district and circuit courts of the United States which bear on the question involved are as follows:

'Section 1. That the circuit courts of the United States shall have original cognizance, concurrent with the courts of the several states, of all suits of a civil nature, at common law or in equity, where the matter in dispute exceeds, exclusive of interest and costs, the sum or value of two thousand dollars, * * * in which there shall be a controversy between citizens of different states,' etc.

'Sec. 2. That any suit of a civil nature, at law or in equity, arising under the constitution or laws of the United States, or treaties made, or which shall be made, under their authority, of which the circuit courts of the United States are given original jurisdiction by the preceding section, which may now be pending, or which may hereafter be brought, in any state court, may be removed by the defendant or defendants therein to the circuit court of the United States for the proper district. Any other suits 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 courts of the United States of the proper district, by the defendant, or the defendants therein, being non residents of that state. * * * And where a suit is now pending, or may be hereafter brought, in any state court, in which there is a controversy between a citizen of the state in which the suit is brought and a citizen of another state, any defendant, being such citizen of another state, may remove such suit into the circuit court of the United States for the proper district, at any time before the trial thereof, when it shall be made to appear to said circuit court that from prejudice or local influence he will not be able to obtain justice in such state court, or in any other state court to which the said defendant may, under the laws of the state, have the right, on the ground of such prejudice or local influence, to remove said cause.'

By reading section 1 of the act it will be seen that to confer jurisdiction on a circuit court of the United States three things are necessary, and no others: (1) A suit of a civil nature at common law or in equity. (2) It must involve $2,000, exclusive of interest and costs. (3) It must arise between citizens of different states, or present one or the other conditions mentioned in the last part of section 1 which part of said section is not quoted, because not involved in the question under consideration. If the three things above-mentioned concur in a case, no methods of procedure prescribed by a state for its own courts can deprive circuit courts of the United States of original jurisdiction thereof. Railway Co. v. Jones (C.C.) 29 F. 193; In re Jarnecke Ditch (C.C.) 69 F. 161; Hyde v. Stone, 20 How. 170-175, 15 L.Ed. 874; Ellis v. Davis, 109 U.S. 497, 498, 3 Sup.Ct. 327, 27 L.Ed. 1006; Cowles v....