White v. Keown

• Decision Date: 06 December 1919
• Docket Number: 907.
• Citation: 261 F. 814
• Parties: WHITE et al. v. KEOWN.
• Court: U.S. District Court — District of Massachusetts

261 F. 814

WHITE et al. v. KEOWN.

No. 907.

United States District Court, D. Massachusetts.

December 6, 1919

Curtin Poole & Allen, of Boston, Mass. (William F. Poole, of Boston Mass., specially), for plaintiffs.

James A. Keown, of Lynn, Mass., pro se.

ALDRICH District Judge.

The motion to remand being grounded on want of jurisdiction over the subject-matter of the proceeding in the state court, I see no substantial reason for considering any of the questions as to the right to appear, or as to the seasonableness of the petition for removal, which were discussed, because no court would proceed with a case, however or when want of jurisdiction is discovered, only in the very exceptional situations in which jurisdiction may be conferred by waiver of the parties; and this is not such a case.

The proceeding in the state court was to remove an administrator. Such a proceeding is plainly local, in the sense that it is one for the state court.

According to Byers v. McAuley, 149 U.S. 608, 13 Sup.Ct. 906, 37 L.Ed. 867, an administrator appointed by a state court is an officer of that court, and, as such, cannot be disturbed by process issued from a subordinate federal court, and reasoning upon the well-understood theory that the jurisdiction of federal courts of first instance is a limited jurisdiction, depending upon the existence of federal questions and statutes in respect to diverse citizenship, it is there said that, where these elements of jurisdiction are wanting, the federal courts cannot proceed, even with the consent of the parties.

In Ex parte Wisner, 203 U.S. 499, 27 Sup.Ct. 150, 51 L.Ed. 264, after explaining that the jurisdiction of the Circuit Court, which is now the District Court, depends upon acts of Congress, and cannot be extended beyond what is conferred, and that the Supreme Court of the United States alone possesses the broader jurisdiction derived immediately from the Constitution, it is said, in effect, that the test as to the jurisdiction of the subordinate federal courts under the removal provisions of the statutes is whether suit could have been originally brought therein, and, if not, that the case cannot be removed from the state court.

Applying such test to the present situation, and assuming that diverse citizenship exists, it is not a removable case on the ground of diverse citizenship, because the subject-matter involved in the proceeding in the state court, to remove the administrator, is not subject-matter over which there is jurisdiction in the subordinate federal courts. The exceptional instances, in diverse citizenship situations where suits have been sustained in federal courts of first instance against local administrators to compel the payment of debts, suits to establish lost wills, suits to recover a particular legacy, bills in equity to annul wills as muniments of title, suits to establish debts against estates, proceedings in equity to establish liens upon undivided shares of heirs at law (the Ingersoll Case (C.C.) 127 F. 418; Id. (C.C.) 132 F. 168; Id., 133 F. 226, 66 C.C.A. 280; Id. (C.C.) 136 F. 689; Id., 148 F. 169, 178, 78 C.C.A. 303; Id., 211 U.S. 335, 29 Sup.Ct. 92, 53 L.Ed. 208; Id. (C.C.) 174 F. 666; Id., 176 F. 194, 99 C.C.A. 548), and the...