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:Onder act defining the jurisdiction bf fe!leral courts. whil;'h ptovidestnat where,juri$dic,tion is founded on the f'actthat the action suit shall be brought only in the disis bE'tweell.. citizens of tric,t· where either 'the plaintiff or defendant resides. an action bY a citizen of Michigan, brought 'inthestate,'c,Oillt of plaintiff's, dist.rict against a. nonresident may be to the federal court by the defendant.
. Motion to Remand to StltteCourt. ' , :, McA,lvoy, & Grant, (Edgar Terhwne, of counsel,) for plaintiff. Ramsdell eft Benedict, for defendant.
This cQsebeingbrought on lor trial, a question arises upon the jurisdiction of the court,-the defendant being a citizen of t!-n9ther state. The facts appearing upon the record are that the suit was originally brought in the circuit court of the state for the county of Manistee, by the plaintiff, who is a citizen of Michigan, against the ·defendant, who is a citizen of Illinois;· and that the defendant, upon a petition showing this diversity of citizenship,and the additional requisite condi,tions; together with the gi....i ng of the proper bond, procured the removal of the cause into this court. The petition was filed, and the removal had, since, the ynactment of the law of March 3, 1887, defining the jurisdiction of this court in original and removed causes. The sltme question was in the. case of Manley v. Obney, 32 Fed. Rep. 708, the facts being the same; but as the·case was remanded upon another ground, it was not ne,cessary to pass on this point. As is known to the profession, the decisions upon it are not hamlOnious. Upon a careful study, after the law of 1887 was passed, entered upon with a purpose of ascertaining what. upon comparison and reconcilement of its various provisions, the law had effected relative to the jurisdiction of the circuit courts,' my impression orit was that where jurisqiction was vested in the court upon the ground of the different citizl;lllship of the plaintiff and defendant, suit might be broughtin the district of either of the parties. The construction givento,the act by the cirouit court in the Ninth circuit was, however, tothecontrary. Cownty u.f Yuba v. Mining Co. ,32 Fed. Rep. 183. :It waS there held that the act only authorized cognizance of the case when it was brQught in the district, where the defend.ant resided; and,. as the law only permitfl removal when the case is one in which thesuit might have been brought originally in the federal court, it would follo'v that, :when the defendantin the state court was a non-resident, the case could not be removed. ,Thatcase::was decided by a ver'lable court, and the decision being concurred in by a justice of the supreme court and the circuit And district judges,is entitled'to the highest respect. The construction there given to the act was a. very rigid one, and, it is obvious,
would curtail the jurisdiction of the circuit court in a very serious manner. The .(Ioum of the Uniteil'States in the Second, Seventh, arid Eighth circuits have not acquiesced in that construction, but have held notwithstanding it, that in such cases the suit may be brought in either the plaintiff's or defQndant's district. Railroad 00. v. Railroad 00., 33 Fed. Rep. : 385; lYlining.Oo. v. Markell, Id: 386; Loomis 'v. Coal 00., Id. 353; Fales v; 32 Feel. 673; Telegrap'hOo. v. Br()Um, Id. 337; Gamti v. Va7We, 33 Fed. Rep. 84; Short v. Railway 00., Id. 114. So far as I am aware the point has not been ruled in this circuit, and it is open. The subjebthns been so much discussed that I do not think it desirable to go into it'at length. Thepith of the inquiry is whether the declaration in the first section of the act that "no civil suit shall be brought before eitherofsltid courts against any person by any original process or proceeding in any other district than that whereof he is an inhabitant," is not to be construed as modified by the language immediately following: 'FBut where thejurisdicti()n is founded only on the fact that the citizeIli! of different states, suit shall be brought only 'in action is the district of the residence of either the plaintiff or the defendant." Thecircruit court in Californial;1eld.in the Yuba. Co. Case, that the former dause furnished the limitation, and that the latter clause did not enlarge it. , The court say that the last-,quoted language is prohibitory in form, and does not,conferjurisdiction in a case otherwise expressly prohibited. Page 185. This construction renders this whole clause practically nugatory,. and seems to me to violate the familiar and always recogJ;lizedrule of construction which requires us t() give effect, where possible, to every part of the statute. The application of this rule requires that we should restrain what is general to give effect to provisions about particulars. If this clause is listened to at all, it seems clearly to furnish the rule of jurisdiction in the particular class of cases mentioned in it. It seems impossible to resist the conclusion that the court in the Yuba Co. Case gave too rigid 'an effect to the general language of the act, and needlessly silenceda plear exception. With great deference, therefore, it must be held that ,wben, as in this case, the suit is between citizens of different states, it may be brought in the district of either of the parties; and when it is brought ill the district of the plaintiff, the defendant may remove it into the federal other conditions, of course, existing. When this question was pending before, I felt it prudent to confer with the cil'" cuitjudge upon it. The communication then, received authorizes me, concurs with me in the c,onstruction of now'toS&y that Judge the statute indicated in this opinion. is beld that the court has jurisdiction, and the case will proceed.
EDISON ELECTRIC LIGHT CO.
(Oircuit Court, 'D. N8'IJJ J6'I'861/. January 10,
CORPORATIONS-:-CONSOLIDATIO'N__A:OTIONs__ABATEMENT AND ' REVIVAL.
Act N. Y. May 22, 1884, 867, p. 448,) authorizing the "consolo .1datiQllof manufacturingoorporath>us, "provides that no action to which the old co.\Cporation was a party, ,shall be abated by reason of sucb consolidation pending. suit, but that shall proceed as if the consolidation had not tll;ken place; or.that the new corporation shall be substituted by order of court. , l!eld, on motion to dismiss a bill filed by a corporation subseqwmtly consolid.a'ted on ,t,be ground that 1'Iaintiff's corporate existence was by the cOIlsolidation, and that a bill of review was necessary under equity rule 56, 'Bl1d on counter-motion to substitute the consolidated corporatIOn: that the " suit did not abate, the proviljions of the New York statute being binding upon ",) the federal courts, and that the latter motion should prevail.,
R. W., Doer, J. a. Tomlinson,ahd a. A. Seward, for cotllplainant. 'L. E. Ourtis, S. A. Duncan and W. Bakewell, for respondents·. , . , t
WKt.ES, J.' The bill in this cause wl;'tsflled on the 22d day of December, 1886, and contains the ustial allegations of infringement by the defendants; On the 4th of Aptil;1'887,the defendants filed a plea and alls'i'er"setting up various defenses, but not denying infringement. A repliciatititi W.as duly filed, and upon the record thus far the defendants are conced-edinfringers. The defendants now move H that the bill of complaint herein be dismissed,for the reason that the corporate existence ot the corporatioll complainanthereiti terminated on orabout the 31st day of December, 1886, bya consoJidation and merger ofthesaid complainant with the Edison Compahy for Isolated Lighting, by virtue ofcertain proceedings had under the laws of the state of New York." The laws cited are contained in the statute ofNew York of the 22d of May, 1884, known as chapter 367 of the laws of that, year. The' defendants insist that by the act of consolidation the complainant company ceased to exist, and that, therefore, as in the case'of the death of a natural person, penderl.telite, the 'suit abated, and' it is necessary that the proper parties, whoever they may be, should be substituted to carryon the suit, under the provisions of equity rule 56' of the supreme court. Under the New York statlite it appears that there is no termination of the existence,or a dissolution of the complainant in to actions, in which it was a: party, pending at the time of thecotlsolidation. The provision relating to this matter is in these words: .. Arid no sllch'action or-other proceeding then pending before any court or tribunal In which any corporation that may be so consolidated is a party '" ... '" shall be deemed to have abated or been discontinued by reason of any such consolidation, but the same may be prosecuted to final judgment in the same manner as if the said corporation had not entered into the said a!(reement of consolidation; or the said new corporation may be substituted as a party in the place of any corporation so consolidated, as aforesaid, with any other corpo, ration or corporations, and forming such new corporation by order of the court in which such action, suit, or proceeding may be pending."
On motion to !Hsmiss bill.