GAVIN V. VANCE.
December 24, 1887.)
In Equity. Motion to remand. H. C. Warinner, for the motion.
C. F. Vance, contra.
HAMMOND, J. Since the argument of this motion, counsel for the plaintiff has suggested an additional ground for remanding the case, which will be first considered. Hecites'the case of Yuba Co. v. Mining 00.,32 Fed. Rep. 183, and insists that, under the new act of congress of March 3, 1887, (24 St. 552,) this court conldhave had no original jurisdiction of this case, because the defendant Vance, not being an inhabitant of this district, could not have been sued here; and, such being the fact, that the cause cannot be removed under the second section of the new act, which confines the right of removal to those cases of which this court could have acquired original jurisdiction under the first section of the act. The case cited seems to hold this, unless there be a distinction between corTlorations and natural persons in relation to this jurisdiction, that being
GAVIN 'V. VANCE.
a case of foreign corporations seeking to remove their suit into the federal court. The act is undoubtedly perplexing in its structural arrangement, and very obscure on that account; but a careful analysis of the several provisions brings out its meaning quite cleady, and it is a mistake, in my judgment, to say that this court could not have acquired original jurisdiction of this suit. Without any attention, for the moment, to the mere phraseology of the act. I will state what seems to me its clear purport, and the spirit of the changes in regard to the locality of the suit or territoriallimitations of the jurisdiction, and the limitations upon the right of removal. Before this act, under the then existing law, a conti'oversy between citizens of different states could be brought into any federal court where the defendant could be with process. Thus, to find an example for illustration in the facts of this case, a citizen of Tennessee could sue a citizen of Mississippi, local requirements aside, as in ejectment, in any district where he could find the defendant, whether in Mississippi, where the defendant is !tn inhabitant, in Tennessee, where the plaintiff himself resides, in New York, or elsewhere. The new act restricts this freedom of selection on the part of the plaintiff, and confines him to two districts only,-that of which the defendant is an inhabitant, and that wherein the plaintiff himself resides. As to these two the plaintiff has the same freedom of selection that he had before, and may sue his adversary in either whenever he can serve the process. Therefore the plaintiff, Gavin, in this case could have sued the defendant Vance as well in this court as in a federal court in Mississippi, the plaintiff being a "resident" of this district, and the defendant an "inhabitant" of that state. Again, heretofore, such a controversy as that mentioned between citizens of different states, if brought by suit in a state court anywhere, according to the law8 of that state, might have been removed to the proper federal court by either party, plaintiff or defendant. Now, under the new act, the plaintiff, having chosen his forum, no matter where, must remain in that forum, and he cannot remove at all. But any defendant sued, not in a court of his own state, but in the state court of the plaintiff, may always remove, by compliance with the procedure devised for that purpose. If sued in a court of his own state, he cannot remove at all, not even under the local prejudice clause of the new act, for, presumably, being in his home court, he will be never at any disadvantage as against a foreigner. Keeping in view these two fundamental considerations governing the jurisdiction over controversies between citizens of different states, as contradistinguished from controversies arising under the constitution and laws of the United States, or the treaties made in pursuance t4ereof, etc., and remembering always the traditional and historical reason for the existence of that jurisdiction, as one preferable to the state jurisdiction over those same controversies, or, if not preferable, at least right.fully optional, and keeping these fundamental conceptions of the act always together in reading it, and it becomes at once intelligent and intel-
ligible and absolutely consistent, so far as it concerns this Class of suits, from beginning to end; but if, wandering among the shattered or designs of former acts, we seek any other spirit for this, and try to interpret it inconformity with the more liberal provisions of that legislation,ora8 a. mere amend?nent of former laws. we a.re a:tonce lost in amazeof wholly inconsistent phrases, that become meaningless and uuinterpretable, according to the rules for construing statrites. If, for instance, the case above cited has put the proper construction on the'act, it renders nugatory, it seems to me, every provision for the removal of this class of cases; nobody being entitled to remove anyone of them at all under any circumstances, and only suits in which the jurisdiction depends upon the subject-matter of the suits, and not the diverse citizenship of the parties, are removable; for there is nothing plainer in the act than the intention that a defendant sued in his own state COUl't shall not remove the case. If he cannot, and citizens of other states made defendants in a state court cannot, as that case is thought to hold, who can remove? And, if neither of these, then why put any provision in the act for the removal of such suits at all? This seems conclusive to me against that interpretation of the act, if what is there ruled as to r,orporations is to be applied to natural persons, and whether it be a proper construction, even' as to corporations,need'not be now determined. The former legislation had pushed the jurisdiction of the federal courts almost to the very verge of the comtituticmal grant, but :this reactionary legislation returns, in deference to thelocaljealousy of the states, to that policy of restriction which entered so largely into the' structure of the original act of 1789, consequent upon the struggle to form any union at all, from which its projectors had just emerged. Yet, notwithstanding this manifestly restrictive policy,the'newact should be jUdicially treated, so far as it, goes, as other voluntary legislative grants of jurisdiction are, and nothing should be implied, as some of the cases considering the act seem to suggest,' from those restrictions themselves, which is inconsistent with the rUle of a liberal construction in furtherance of the accomplishment of the designated purpose of the congressional grant, whatever \that purpose be. Here there is a manifest intention to 'aflord such protection as is assumed to be found in the federal jurisdiction to every nonresident defendant sued by his adversary in tlie home courts of that adversary, against any possible partiality in those courts. Turning, no",", to the phraseology' oithe act, let usexamir.e it in relation to this character of suit, where the jurisdiction is dependent only on the diverse citizenship of the parties. And first as to the original jurisdiction: which this court might have acquired over this suit, does not the act in its first section say in so many words "but where thejurisdiction is founded only on theJact that the 8.ction is between citizens ofdifferent states,' suit shall be brought only iIi the district' of the residence of either the plaintiff or the defendant?" It is said in the case cited that this clause is'" prohi bitory in form" and "does not enlMge the jurisurisdiction in a case otherwise expresely prohibited." diction, or It is, indeed, pi'ohibitory, or rather restrictive, in form, and possibly
does not enlarge any previoaslygranted jurisdiction; and yet it is not as prohibitory or restrictive as the statement suggests; and that is the real far does the prohibition or restriction go? The provision of the act, which is said not to have been enlarged, is in these words: "And no civil suit shall be brought before either of said courts .against any person by any original process of[8ic] proceeding in any other trict than that whereof he is an inhabitant." Now, this prohibition has been in every act from 1789 down, and. yet the jurisdicfion was in fact enlarged,notwithstanding that prohibition in thaoriginal act, by the very next cla;use, which reads, "or in which he shall be found at the time of serving the writ," (1 St. 79;) and, likewise, it was enlarged in the act of 1875 by the next clause thereto, which reads, "or in which he shall be found at the time of serving such process or commencing· such proceeding,except as hereinafter provided," (18 St. 470j) and so there was an extension of the privilege of the plaintiff to sue in other districts than that whereof the defendant was an inhabitant, until we had that freedom of selection of a district in which to sue that has been already described. If these clauses could enlarge the jurisdiction in those acts, notwithstanding the leading prohibition, why cannot the new clause of the new act' enlarge it to the extent indicated ofallowing the plaintiff two districts only, instead of so many ashe had before? But the,fact is, this new clause Millimes a prohihitory; or more properly a restrictive form, because the 'new-act is in form amendatory,and the language is seeking to restrict the broad permission of former 'act;! to sue the defendant wherever found; but non conatat that it goes as far in its prohibition as the case cited seemstohbld that it does. The"other language quoted from the new act mUfl! have effect, and the plaintiff be thereby permitted to sue "in the- di&rict of the residence of either theplaiJntiff or the defendant." Such worda as these cannot be discarded because of the mere form of the clause. The form of the whole statute is unfortunate; for it would have been betteruhderst00d, if it had heen,in form, as it is in fact, a new act, instead of amerepateh-work amendment of the old statute. We have -by the opening clauses of 'the first section the most absolute jurisdiction of "all suits of a; civil nature, etc., in which there shall be a controversary [sic] between citizens of different states, etc." The subsequent restrictive clause as to the locality of the suit, -already quoted, is itself subsequently qualified so that the joint product of the two is entirely withi,n this primary gralltofjurisdiction, and hence there is no kind of enlargement necessary. The clause forbidding suits" in any other district than that whereof he (the defendant) is an inhabitant" should be read as if the next clause were introduced as a 'Proviso, which it clearly is. , It seems td be that, if we could have had original jurisdiction of this suit, We may acquire it by removal on the terms and under the restrictions Of the new act. At all events, if the above view be cornlct, this case Comes within the clause of the second section which limits the tosults "of which the circuit courts of the United States ate 'given jUrisdiction by the preceding section." But there is a 'furtherrestri(jtioh' whioh: points out the clefendant here as the very cLar-
acter of party, and the only kind .of party, who could remove, namely, "the defendant or defendants therein, being non-residents of that state,"that is to say, of the state in whose court the suit is brought. If the parties had been reversed, and Vance had brought this embodying his side of the same controversy-in the state court of this state, as he might have done, he could not have removed it here, although we might have had originaZ jurisdiction of it, because, being plaintiff, and having selectell his own forum, he must abide there; and so Gavin, who would then be the defendant, could not remove it, although we might have had originaZ jurisdiction, because, being in his own state court, he is compelled to remain there by the restrictive langu:age last quoted from the second sectioll of the new act; and, to show this more clearly, the identical prohibition on any removal by him reappears even in the subsequellt local prejudice clause, thus: "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 BUch citizen of another state, may remove," etc. On the other hand, if Vance had caught Gavin in Mississippi, he might have sued him originally in the federal district in which he himself resided, or, suing him in a state court there, Gavin could then have removed the suit to the proper federal court, but Vance could not. Moreover, the primary grant of jurisdiction contained in the first clause of the first section-to which it is possible the removal sectioIirefers, rather than to the more restricted clause relating to the wcaZity of the suit--is of the most exbmsive character and broad enough to give the court jurisdiction by removal of any suit between citizens of different states brought in a state court, although the locality might not be available for originaZ jurisdiction of the federal court under the subsequent restrictive clauses of that first section. So that the restrictions of locality as to suits originally brought may not apply to the jurisdiction by removal at all. In other words, we must look alone to the restrictions of the removal section for the qualifications of that jurisdiction and treat those relating to the wcaZity of original suits as wholly inapplicable to the entirely different subject of jurisdiction by removal. Whether this be a proper construction we need not say, but it is neither impossible nor improbable, nor yet an unreasonable construction. . It is certainly those suits, in this branch of the jurisdiction, brought in the residence of the plaintiff, that can be removed by the defendant residing in another state. It is certainly those suits, in this branch of the jurisdiction, brought against a rlefendant in his own state courts, which neither he nor the plaintiff can remove. It is just as certain that .the plaintiff, bringing the suit inhis own state or any cdurt, cannot remove it. And all this because there is no just cause to complain of any danger of partial treatment as between a state's own citizens and those of another state; .and, in the case of the plaintiff, if there be any such cause, he has chosen that forum and should stay there. Because neither plaintiff nor defendant could have such just cause of suspicion or complaint, it is that no especial provision seems to have been made for removal where the 'iuit is brought.in the court of a state where neither of them resides, and
GAVIN V. VAlSCE.
that that class of cases may be excluded from the jurisdiction by removal, as they are from jurisdiction by original process. On the whole, it is my opinion that this is the proper construction of the act, and one that clears its meaning in relation to this particular suit, and shows that it is removable. But another and more formidable question is presented by the objection that the petition for removal was not filed in time, under the requirements of the third section of the new act. The limitation in that regard is in the following language: "That whenever any party entitled to remove any suit," etc., "may desire to remove such suit from a state court to the circuit court of the United States, he may make and file a petition in such suit in such state court at the time, or at any time before the defendant is required by the laws "f 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," etc. 24 St. 554, § 3. The petitioner, being a citizen of the state of Mississippi, and non-resident here, was sued in the state court by process of publication only, upon an attachment of his property in the chancery court, by an order of the chancellor to that effect. The suit is in the nature of an action of ejectment and for rents and profits, involving a controversy over a leasehold, which, according to our peculiar Tennessee practice, may be considered "of an equitable nature," in the purview of our Code, giving the chancery court jurisdiction "in all cases of an equitable nature." M. & V. Code Tenn. § 5022 et seq. Strictly taken, it might be treated as a suit of legal cognizance; yet it is familiario'our chancery practice as "an equitable action of ejectment." It might possibly have been brought under oUr attachmenflaws as an action of debt for the rent, but in combination with a demand for the possession of the land, the appointment of a receiver, and a prayer for attachment, it Itbsumed the equitable form already mentioned, and was not brought under the attachment chapter of the Code at all, but under that rej:1;ulating proceedings in the chancery court, and the attachment issued upon the fiat of the chancellor in pursuance of sections 5030 and 5032, M. & V. Code Tenn., and not in pursuance of section 4192. Yet, the clerk of the state court, erroneously supposing that it issued under the latter section, gave notice under the attachment chapter, referring in his notice to that section, using, possibly, the printed blank appropriate to that proceeding. Now, in view of the language of the act of congress above quoted, there are most important distinctions between the procedure appropriate to a suit commenced by original attachment and one commenced by process of publication and equitable attachment, as this was. It is not necessary to detail all the essential differences in this place, though a careful reading of the whole chapter relating to each class of cases is useful in demonstrating the importance of not confusing them, as the clerk of the state court has done, when considered in their relation to a motion like this, arising under our act of congress. The fact that there is an attachment in either class of cases is naturally confusing; but care must be used in practice to distinguish the mode of procedure appropriate to each dass, where the question depends, as it does here, wholly upon the mode l . .
ofprocedure. If the defendant appear and answer, it cures every defect in the state court, and the distinctions perhaps are no longer important; at least, they may not be there, but, in bringing the case. here and. on a motion to remand, this curative quality is wholly wanting to nidus in the determination of the motion. Hence, it may be well eI10ugp in the beginning of our practice under the new act of congress to take warning that any confusion of the two classes of procedure does seriously.afl'.ect the limitation of time within which a removal to a federal court may be made. Under the attachment laws, thl:) officer granting the attachment may, at the of issuing it, direct that when it is levied publication be the defendant" to appear at a time and place to be menmade, the action.. M. & V. Code Tenn. tioned. in such publication," and § 421)9. If not so made, the. clerk of the court may make such order "at any time thereafter." ld. 4260. Here the ,time is fixed by the order, and by that alone, unless the rules and practice of the court, whether especially prescribed or growing up by mere practice, control the discretion of the officer in appointing the time. Other provisions follow, not and then it is provided that the atnecessary to tachment and publication shall be in lieu of personal service, and the plaintiff proceeds as if the .suit had been commenced by S'llmmons, while the defendant, if he "appear in time," .IJ;lB.y make defense, as if the suit had been commenced by personal13ervic.e of process. ld. §§ 4265, 4267. If, however, the defend.ant do not appear, there may be a judgment by default,as'upon personal serviceibut if. the attachment. be sued out because the .defendant is a non-resident, there shall be a stay of final judgment of not less than six months, nor, more than twelve, and any judgment by default maybe set aside within twelve months, on cause shown, and defense permitted upon such. as may be imposed. ld. 42684270. It should have been reJIlarked that this character of suits may be brought in any court of law or equity, although of purely legal cognizance, and not infrequently, if not most often, is in fact brought by bill in the chancery court. .' . ' Under the laws regulating in chancer'!Ji "in all. cases of an equitable natu;re," the procedure is diflerent' from that above described. M.& V. Code Tenn. 5022 et seq. The chancellor, as,was done in this case, must grant a fiat for any attachment or other extrll:ordinary process. ld. 5030, 50;32, 5054, subsec. 5, 5088. Subprena issues on filing the bill, and, if five days before its return-day, ",hich may be any rule-day, .the ,defendant must "appear" within the first three days'of the term, or,iflessthan five days, on the first day of the. second term. ld. 5082-5094., This, suppll:lmented by chancery rule 11, and under the established ,practice, not only that the defendant shall "appear" in the kll0w,n to. a court of equity, but also that he shall "make defense" by filing pis demurrer, motion, plea, or A,nSWeL', "or obtain time therefor within tb,e three successive days;" that is. to say , within three days after the first day of the term, or such other Monday of the term as may have b.eendesignated under that chancery rule. ld. p.
1209. And likewise this rule by its section 3 prescribes the same practice on publication for a defendant. ld. · Now, then, by the next article of the chapter, the Code prescribes that where the defendant is a non-resident, and the fact is stated on oath in the bill, or by affidavit, "if the defendant does not cause his appearance to be entered," the clerk "shall enter upon the rule docket an order requiring the defendant to appear at a certain day therein named, being a rule-da.y, and defend, or the bill will betaken for confessed." ld. § t5097. The clerk is reqUired' forthwith to cause "a copy of this order" to be published in a newspaper for four weeks, and subsequent sections direct what it shall contain, and how the publication shall be proven. ld. 5098....;5102. The plaintiff may compel an answer by proceeding for contempt; or he may proceed in default of answer by pro confe$8o to a final decree. ld. 5103-5126. But "a defendant, who is not served with process, may appear and defend at any time before final decree, as of course." ld. 5119. Then comes a provision, very important here, that cases brought under theattach1nent laws, heretofore referred to in this opinion, in the chancery court, shall be governed by that chapter on attachment in relation to the effect of a judgment by defl),ult;showing clearly that the Code itself seeks to prevent a confusion of the two classes of cases. ld. 5121. And, in all other cases, that is to say, in all cases brought in the chancery court that are not commenced under these attachment laws, a decree agttinst a defendant does not become absolute for three years from the decree, unless, on service of a copy of the decree, it becomes absolute within six months after service. ld. 5122. In this case, belonging to the.second class of cases above distinguished, the clerk proceeds as if it beloaged to the dther or first class, and gives notice accordingly. He does not follow the directions for procedure as prescribed in the Code, §§ 5097-5102, as he should have done, but those prescribed in sections 4192 and 4259-4265, as he "should not have done. It does not matter that in this case each method of procedure would or might have produced precisely the same result so far as the time appointed is concerned, if for no other reason, because a different time might have resulted but for the mere accidents of this case. Pursuing the attachment chapter. he gave notice under Code, § 4260,to appear "on the first Monday in June next," and published the order in a newspaper. T,he fact that this might have been, and probably was, a rule-day of the chancery court, and that, if he had pursued the other sections, (50975100,) by entering "on the rule docket" an order requiring the defendant to appear "on a rule-day" to defend the suit, and publishing "a copy of that order" in the same newspaper for the same time, he would or might have fixed the same day and published substantially the same notice, is only a factitious circumstance. He might under the attachment laws have designated any other day as well; and probably because the sui t was in a chancery court he fixed a rule-day, according to that practice, exercising his power to fix the day under section 4260. But the distinctions pointed out show that we must not be misled by such