WILSON ,V. WE!>TERN mUON TEL. CO.
WILSON 1:1. WESTERN UNION TEL. CO.
(Circuit Oourt, N. D. Oalifornia. March 19, 1888.)
REMOVAL OF CAUSES-PROCEDURE-AcTS OF STATE COURT.
The United States removal act. as amended by act of March 3, 1887. gives to the circuit court immediate jurisdiction upon the tiling of the required petition and bond in the state court. where the action is pending. the case being removable; and no act of the state court is necessary to. or can prevent, the jurisdiction of the circuit court, which court, upon the filing of a copy of the record"may procee4 with; the cllsells if it had been originally entered there. OFREMOVAL-NoN-RESIDENT DEFENDANT-AcT OF MARCH 3, 1887. " . , ' Under the act of March 3, 1887, providing that United' States circuit courts shall have juriEldiction of civil causes between citizens of different states. and that when the jurisdiction is founded only on diverse citizeuship suit may be brought in the district where either plaintiff or defendant resides; and that civll suits, of which the circuit cou'rt has jurisdiction,and which are brought in state courts. may be removed to the circuit court by defendant, if a nonresideI:lt of thestate,-a foreign corporation sued in a state court by a citizen of thelltate has a right to a removal to the circuit court.
On Motion to Remand. Before FIELD, Justice, and SAWYER, H. B. Gillis, for plaintiff. Philip G. Galpin, for defendant.
FIELD, Justice. This action was brought to recover damages alleged to han> beeu sustained by the plaintiff from a collision with the telegraph wires of the defendant, the Western Union Telegraph Company, which,by its negligence, had become detached from the poles by which they were usually held, and were suspended near the ground. It was commenced in the superior court of Siskiyou county, Cal., in June, 1887, and the sheriff served the summons issued on the company the 1st of July following, by deliveting a copy thereof, attached to a certified copy of the complaint in the action, to one Frank Jaynes, in the city of San FrailCisco. The plaintiff is a citizen of the state of California, and the defendant is a corporation created under the laws of New York, and is, therefore, to be deemed, for the purposes of jurisdiction in the federal courts, a citizen of that state. On the 23d of July the defendant filed a petition for the removal of the action to the circuit court of the United States, on the ground of the citizenship of the parties in different states, accompanied by the bond required by the act of congress in such cases. Objections ,were made by the plaintiff to granting the petition, on the ground that no notice of it had been filed or served on him, and that the appearance of the defendant had not been entered; and the petition was denied. The defendant, notwithstanding this denial, had copies of the papers in the state court filed in the circuit court of tbe United States, !lnd .in that court it appeared and put in an answer to the complaint. The circuit court having thus taken jurisdiction, it is moved that the v.34F.110.8-36
case be remanded to the state court, on the ground that it was unlawfully removed, aodhy stipulation of parties the motion is submitted to myself and the circuit judge for decision. The denial by the state court of the petition of the defendants for removal of the action in no respect affects the jurisdiction of the circuit court of the United States, if the action was removable, alld,the bond offered was such as the statute required. The statute makes the removal upon the tiling of the 'petition with the necessary bond. The order of the state,c,ourt directing the removal would have been a proper proceeding; it would have been record evidenceof the court'e acceptance of the bond, andofits acquiescence in the transfer of the action from its jurisdiction. But' its refusal to make the order could not take from the circuit court its rightful jurisdiction. The st,atute of March 3, 1887, amending the, act of 1875, determining the jurisdiction of the, circuit courts of the United States, and regulating the removal of causes from state courts,provides that whenever a party is entitled to remove a suit from a state cpurtto the circuit court of the United' States, and desires to do so, he shall, in certain cases, not, material to the here, file a petition for such removal in the suit at the time, or any time before the defendant is required to answer or plead to the declaration or complaint, and file a bond with gooda,nd sufticient surety for his entering in the circuit court, on the first day of its then next session, a c<?py of the record in the suit, and for paying that lnay be awarded by that court, if it shall hold that the'suIt was wrongfully or improperly removed thereto, and also for his appearing and entering special bail in the suit, ifspe'cial bail was' originally requisite therein. And the statute declares;tbat "it shaH then be the duty oithe state court to accept saidpetitiohand bond, arid proceed no further in such suit; and ,the said copyheing entered as aforesaid in said circuit court of tlIe United States, the Clluse shall then proceed in the same manner as if it had been originally (}()mmenced in the said circuit court." 24 St. 553, c. 373, § 3. As thus seen, no order of the state court or·the circuit com'tis con. templated to transfer the jUrisdiction of the action. As said by thesupreme court, in Railroad Co. v. Koontz, 104 U. S; 14, spf'aldng of the provisions on"this ,subject in :the act of 1:87'5, which were similar to those in the actof1887:
"It is!\ rule'ofdecision in this court that when a $ufficient case forremovaliii1 made in the court. the rightful jurisdiction of thatcourt comes to all end, and no further proceedings can properly be ba(l unless in some form its jurisdiction is restored. ,Gordon v. Longest, 16 Pet. 97; Kanouse"; Ma1·tin, 15 How. 198j1nsurance Co. v. J)unn, 19' Wall. 214; Rail'roadOo.v.'Mlssissippi, 102 U. 8.185. The entering of the copy of the record in the circuiteourt is necessary to enable that court to proceed, but its when under the law it becomes, the duty of the state to pl'pqeed 'rhe provision of the, act of 1875 is, in this reth,e same as t11\\t of the t;welfth section of the judiciaryact of 1789, 'and requires the state court; when the petition and a sufficient bond are' presented, to proceed nofurther with the suit; and the circuit court, the record todeaJ'with the cause as iflt had been originally
WEBTll:RN, U.NtON _ TEL. 00.
commenced in tha,tconrt., The jurisdiction ,is ohanged when the removal .Is demanded ira proper form, and a'case for removal made. Proceedings in the ciJ.'cuit court may 1,)egin when the copy is entered."
It does not appear what relation Frank Jaynes bore to the Western Union Telegraph Company, to render the service of process on him service on the company. This is not, however, important, as the company accepted the service as sufficient, and appeared in the state court with its petition, and in the circuit court filed its answer. When the petition was filed, the time for its presentation had not expired. By the law of California, ,8.> ,defendant, served with summons out of the county iu which the action is commenced, has 30 days to appear and answer the complaint. Only 23 days had elapsed in the present case from the serviceof the sumtI)ons and copy of complaint, when the petition for removal was tiled. The evident object of this motion is to obtain a reconsideration of the of the circuit court in the case of Conntyof Yuba v. Mining Co., rendered in August, 1887, and reported in 32 Fed. Rep. 183. It was there held that, under section 1 of the act of 1887, the circuit courtcollid not take cognizance of an action brought against a pq.rty in a district of which he was not an inhabitant,and that, under section 2, no removal could ,be made to the circuit court of the United States of an actiop brought in a state court against a party who was not an inhabitant of the district. In that case, 'the plaintiff was a county of the state of California, and the were corporations of the state of Nevada. The opinion in the case was written by my associate, the circuit judge, but I concurred in it, and in the jUdgment which followed. I have, however, long been satisfied that we fell into an error, and I am happy that we hav.e so early an opportunity of correcting it. Whether that case is in such a position that the motion can be renewed, and the ruling reconsidered, I am not able to state. We can, however, prevent the decision from misleading hereafter in other cases. , The first section of the act of March 3, 1887, declares in what cases the circuit courts of the United States shall haveoriginal cognizance with .the courts of the several states of suits of a civil nature at COUlmon law .or in equity. In SOJIle of them, perhaps in all, it prescribes the amount or value which must be involved, interest and costs. Omitting any consideration of that matter, the jurisdiction is to the following cases: (1) Those which aribe under the constitution or laws of the United States, or treaties made or which shall be made under their authority; (2) those in which the United Stateb are plaintiffs or petitioners; (3) those in which there is 8.> controverEly between citizens of different states; (4) -those in which there is a controversy between citizens of the Baln,e state claiming lands under grants of different states; and (5) those in which there is a controversy betweeu citizens of a state and foreign states, citizens, ,pr Elubjects. The section 3,lso prescribes the jurisdiction of the circuit courts in criminal cases,. both original and concurrent with the district courts; but thalis a matlernot pertinent to the present quiry. It then declares that "no person shall be arrested in one district for trial in another in any civil action before a circuit court or; district
,i¢d 'no civil suit !jhall be bro'ugbt before either of said courts againstany person by any original process [orJ proceeding in any other district than that whereof he is an inhabitant; but where the jurisdictionisfounded 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." The plain meaning of this clause, so far as it relates to the district in which a civil suit in a circuit or district court may be originally brought, is this: that such suit, where the jurisdiction is founded upon any of the causes mentioned in the section, except the citizenship of the parties in different states, must be brought in the district of which the defendant is an inhabitant; bu.t where such jurisdiction is founded solely upon the fact that the parties are citizens ofdifferent states, the suit maybe brought in the district in which either the plaintiff or the defendant resides. No other intelligible meaning can be given to the section without omitting from consideration the concluding lines of the clause quoted; and such an omission is not missible. The settled canon' in the construction of statutes requires effect to be given to. every sentence and word, if practicable; and' here there is no difficulty in carrying out the requirement. The clause is not happily drawn; it watlts the precision and clearness that a careful and intelligent revision would have given; bu'tit is not difficult to get at its purpose and meaning. The concluding lines are to be read as a proviso to the general provision that no civil suit shall be brought except in the district whereof the defendant is an inhabitant. now to the second section of the act of 1887, we find the cases mentioned in which a removal of suits of a civil nature may be had from the state court to the circuit court of the United States. They embrace, among others: Fir8t, suits of a civil nature arising under theconstitution or laws of the United States, or treaties made, or which Shall be made, under their authority, of which by the previous section of the act the circuit courts are given original jurisdictiou, but which are pending, or may be brought, in a state court; these may be removed by the defendant or defendants therein; and, second, other suits of a civil nature of which the circuit courts are given original jurisdiction bythe first bection, but which are pending, or may be brought, in a state court; these may be removed by thedefendant or defendants therein being t'lOIi-rel:;idents of the state. In one of these classes of Eluits a removal may be asked by the defendant or defendants without regard to his or their resi:dence; in the other class, a removal can be asked only when the defendant or defendants reside without the state. According to this construction of the two sections, the corporations of Nevada, defendants ,inthe Yuba County Ch8e, had a right to its removal to the circuit court of the United: States, and we erred in remanding it back'to the state court. So, in the present case, the defendant, the Western Union puny; has a right to its removal to the circuit court; and theremovul being made, the motion to remand the case back to the statecourt must bedenied. Since the decision iIi the Yuba County Case, the samequestion has been before several circuit courts, and the decisions rendered
HALSTEAD' v. MANNING, BOWMAN
by them, after a careful C?nsideration of the subject, have been against the one we made, and which We now overrule. See Fales v. Chicago, 82 Fed. Rep. 678; Gavin v. Vance, 83 Fed. Rep. 84; LoomUJ v. Coal 00., ld. 353; Railroad 00. v. Rauroad Co., ld. 385. Motion denied.
MANNING, BOWMAN & Co.
(Oircuit Oourt, S. D: Nezo York. April 18, 188S.)
COURTS-FEDERAL-OBJECTIONS TO JURISDICTION-DEMURRER.
A bill for infringement of a patent; in the circuit court for the Southern district 9fNew York, by a citizen of that state, alleged that the defendant was a corporation. gf Connecticut doing business in the. district. Held, on demurrer to tbe bJ1l, for which a special appearance only had been entered, that the court had no jurisdiction; the defendant, unuer the act of congress of March 8, 1887, not being liable to suit outside of the district of which it was an inhabitant, except where it consents thereto, or waives its objection, or where the jurisdiction of the circuit court is invoked solely on the ground of diverse citizenship.
InEquity. Bill for F. W. Crocker, for complainant. Edwin B. Smith, for respondent.
On demurrer to bill.
WALLACE, J. The defendant raises by demurrer to the bill of complaint the objection that this court has not jurisdiction over the person of the defendant. The bill alleges the infringement by the defendant of letters patent of the United States granted to the complainant for a new and useful improvement in stewing kettles or boilers, and also alleges that the defendant is a corporation organized under the laws of the state of Connecticut, and doing business in the Southern district of New York. Prior to the act of congress of March 8, 1887, the defendant could have been sued here, if" found" within the district, but that act has made a radical change in the former'provisions of law respecting the jurisdiction of this conrt, and a defendant can no longer be sued outside the district of which he is an inhabitant, unless he consents, or waives his right to object, except where the jurisdiction of the circuit court is founded only on the fact that the action is between citizens of different states. The present action.does not fall within that category; and, as the facts showing want of jurisdiction appear upon the face of the bil1, and the defendant has not appeared generally in the action, bnt specially, in order to raise the objection by demurrer, the demurrer must be sustained.