Whitworth v. Illinois Cent. R. Co.

• Decision Date: 09 April 1901
• Parties: WHITWORTH v. ILLINOIS CENT. R. CO.
• Court: United States Circuit Court, District of Kentucky

107 F. 557

WHITWORTH v. ILLINOIS CENT. R. CO.

United States Circuit Court, D. Kentucky.

April 9, 1901

Hendricks & Miller for plaintiff.

Quigley & Quigley and Pirtle & Trabue, for defendant.

EVANS District Judge.

The plaintiff, a citizen of Tennessee, as he alleges in his petition, and as is also stated in the petition for a removal, brought this action in a state court of Kentucky against the defendant, a citizen of Illinois, to recover a sum in excess of $2,000. Upon the petition of the defendant it was removed to this court, and the plaintiff has asked that it be remanded to the state court for trial. The claim to this relief is based upon the provisions of section 1 of the act of August 13, 1888 (25 Stat. 433), by which, in substance, it is provided that the district and circuit courts of the United States shall have original cognizance concurrent with the courts of the several states, over all suits of a civil nature, at common law or in equity, in which there shall be a controversy between citizens of different states, and in which the matter in dispute exceeds, exclusive of interest and costs, the sum or value of $2,000, and by which it is further provided 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 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,' and upon that clause in the second section of the same statute which provides 'that any 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.'

Neither of the parties to this action being a citizen, resident, or inhabitant of Kentucky (as, for the purpose of this case, we may assume is the fact), it is contended that the language of the statute above referred to, when properly construed literally and necessarily excludes the right to remove the case, because, as neither party to the action is a resident or inhabitant of Kentucky, the circuit court of the United States would not, under section 1 of the act referred to, have original cognizance thereof, and consequently that the right of removal does not exist under section 2. Counsel for the plaintiff, in support of the motion to remand, cite the court to the cases of Yuba County v. Pioneer Gold Min. Co. (C.C.) 32 F. 183; Telegraph Co. v. Brown, Id. 337; Harold v. Mining Co. (C.C.) 33 F. 529; Shaw v. Mining Co., 145 U.S. 444, 12 Sup.Ct. 935, 36 L.Ed. 768; Railroad Co. v. Davidson, 157 U.S. 201, 15 Sup.Ct. 563, 39 L.Ed. 672.

Undoubtedly, if there were no other decisions, those in the three cases first named would seem strongly to support the contention of the plaintiff, whatever may be said as to the two others referred to by his counsel. But while the judges who wrote, and those who concurred in, the opinions in those three cases did so rule at a date immediately succeeding the enactment of the statute, those cases have been expressly overruled, and the whole current of decisions since that time has been the other way, and it may be regarded as conclusively established that the right of removal exists in such cases where a general appearance is entered, especially if followed by an answer to the merits of the controversy. The cases are numerous, but the court will refer only to the following: Cowell v. Supply Co. (C.C.) 96 F. 769; Creagh v. Society (C.C.) 83 F. 849; Duncan v. Associated Press (C.C.) 81 F. 417; Long v. Long (C.C.) 73 F. 369; Sherwood v. Mississippi Valley Co. (C.C.) 55 F. 1; Bank v. Pagenstecher (C.C.) 44 F. 705; Uhle v. Burnham (C.C.) 42 F. 1; Amsinck v. Balderston (C.C.) 41 F. 641; Burck v. Taylor (C.C.) 39 F. 581; Kansas City & T.R. Co. v. Interstate Lumber Co. (C.C.) 37 F. 3; First Nat. Bank v. Merchants' Bank, Id., 657; Hulbert v. City of Topeka (C.C.) 34 F. 511; Wilson v. Telegraph Co., Id. 561; Fales v. Railroad Co. (C.C.) 32 F. 673.

Judge Dillon, in his well-approved work on Removal of Causes (in section 96), says:

'At first it was held that if the action was brought against a defendant in a district of which he was not an inhabitant, so that the federal court would not have originally had jurisdiction of it under the first section of the act, it could not be removed under the second section. But this position was soon abandoned. It was next considered that, while the right of removal might depend upon the capacity of the particular federal court to entertain original jurisdiction of the suit sought to be removed, yet the statute permitted the plaintiff to sue the defendant in the federal district of the plaintiff's own residence as well as in that of which the defendant was an inhabitant, where the federal jurisdiction depended only on the fact of a diverse citizenship of the parties; and therefore such a suit was removable by the defendant, if brought in a state court of the plaintiff's own state. But this rule was in turn superseded by a more liberal doctrine. It came to be perceived that the restrictive language of the first section of the act was referable only to suits commenced in a federal court by original process or proceeding, and had no application to suits removed from state courts, and that the word 'jurisdiction' in the clause in the section relating to suits of which the federal courts may have original jurisdiction is not to be taken in the narrow sense of a jurisdiction over the person of the defendant by reason of his residence within certain territorial limits, but in a wider sense, meaning jurisdiction over the whole class of cases enumerated in the statute. Accordingly, it is now well settled that, where the parties are citizens of different states and the other conditions of removability are satisfied, the cause may be removed to a federal court, notwithstanding the fact that neither plaintiff nor defendant is a citizen or resident of the state where the suit is brought, or of the district within the territorial jurisdiction of the federal court to which it is to be transferred.'

In the case of Trust Co. v. McGeorge, 151 U.S. 132, 14 Sup.Ct. 286, 38 L.Ed. 98, the supreme court proceeded upon lines which would appear fully to support the doctrine of ...