Yellowstone-Merchants' Nat. Bank of Billings v. Rosenbaum Bros. & Co.

• Decision Date: 09 January 1922
• Docket Number: 975.
• Citation: 277 F. 69
• Court: U.S. District Court — District of Montana
• Parties: YELLOWSTONE-MERCHANTS' NAT. BANK OF BILLINGS v. ROSENBAUM BROS. & CO.

277 F. 69

YELLOWSTONE-MERCHANTS' NAT. BANK OF BILLINGS v. ROSENBAUM BROS. & CO.

No. 975.

United States District Court, D. Montana.

January 9, 1922

Collins & Wood, of Billings, Mont., for plaintiff.

Cooper Stephenson & Hoover, of Great Falls, Mont., Shea &amp Wiggenhorn, of Billings, Mont., and C. G. Myers, of Chicago Ill., for defendant.

BOURQUIN District Judge.

Plaintiff is a national bank of this state, and defendant is a corporation of Illinois. The action in trover was brought in a state court, process was served in this state upon defendant's president, defendant appeared specially to quash and dismiss and to remove the cause hither, and also appeared specially herein to quash, and plaintiff appeared specially to remand.

Plaintiff's contention is that, since defendant insists it was not legally served with process, and is not subject to process in this state, for that it is in no respect to be found in it the action could not have been brought and maintained in this court against defendant's objection, and that in consequence it cannot be removed hither against plaintiff's objection. And appeal is made to Nickels v. Pullman Co. (D.C.) 268 F. 610, and its construction of the rule of Wisner's Case, 203 U.S. 449, 27 Sup.Ct. 150, 51 L.Ed. 264, and Moore's Case, 209 U.S. 490, 28 Sup.Ct. 585, 706, 52 L.Ed. 904, 14 Ann.Cas. 1164. The Nickels Case supports plaintiff's contention, but it is believed its construction of the rule aforesaid is erroneous.

That rule is that any federal court has original jurisdiction of suits between citizens of different states, but compulsory jurisdiction of the parties' persons only when the suit is brought in the district of the residence of one of them. Otherwise brought, jurisdiction is secured of defendant's person only by his waiver of objection to improper venue, not to improper process, because there can be no process nor service. Likewise any federal court has jurisdiction on removal of such suits, but compulsory jurisdiction of the parties' persons only where the suit is brought in and removed from a state court within the district of plaintiff's residence. Brought in a state court within any other district, jurisdiction of plaintiff's person on removal is secured only by his like waiver of objection to venue, and not to process. (Query: With plaintiff's consent, can removal be had of a suit brought in the district of defendant's residence? Probably it could, as a suit within the jurisdiction of the federal courts anywhere.)

Hence a suit brought in a state court, in a district wherein brought in a federal court there is no compulsory jurisdiction of defendant's person, cannot be removed to the federal court and thereby secure compulsory jurisdiction of plaintiff's person. And, the statute limiting removal to nonresident defendants, it follows there can be removal without plaintiff's consent of suits brought in the district of plaintiff's residence, but not of suits brought elsewhere.

Assuming this to be the rule of Wisner's Case and Moore's, the fallacy of Nickel's Case is that it conceives the rule to be that, without plaintiff's consent, there cannot be removal, unless prior thereto compulsory jurisdiction of defendant's person is actually secured in the state court by valid...