FIRST NAT. BANK.
haust his exceptionst<;lthe form. of the complaint by, motions to make definite and certain, or by demurrer thereto; and ·D,6t until he has been required to ::nswer, using this word to mean the technical answer, does the time within which he must pray removal begin. position. its de· There would seem to be' much force in cision necessary tD this case, it would be discussed, but we rest upon the ground first stated. , .' An objection was raiSed' at the hearmg. to the bond. It is not signed by the . but it. is executed by two responsible per· \!lons. The act of congress says that. the party desiring removal must, with his petition, to this end make and, file therewith a bond with' good and sufficient surety for his or their 'entering into the cir· cuit court. on the first day of its then next session, a copy of the record, etc. Strictissimi juris, if a party make a bond, it should be his bond. But the condition of thiH bond has already been complied with. It had ample surety.. The statute is substantially complied with. The motion to remand is refused.
BURNHAM et al. v. FIRST NAT. BANK OF LEOTI. (Circuit Court of Appeals, Eighth Circuit.
1. REMOVAL Oll' CAUSES-CITIZENS OJ' DIFFERENT STATBS-'-SUBSTITUTED PAR-
November 14, 1892.)
Where replevin is brought in a state court by a citizen of the state against the sheriff of a county therein to recover goods levied on by writ of attachment, and the plaint11ls in the attachment are substituted for the sheriff as defendants, they, although citizens of another state, are not entitled to remove the action of replevin to a circuit court of the United States, as the original defendant had no such right
SAME-COMITY BETWEEN FEDERAL AND STATE COURTS.
Query, whether, on the ground of comity, a United States court should not refuse to take jurisdiction by removal of such action.
8. SAME-TIME OF ApPLICATION.
Under Act Aug. 13, lass. § 3, (25 St. p. ....33,) requiring the application to! the removal of a cause from a state court on the ground of diverse citizenship to be filed in the state court not later than the time within which, by the state statutes, the defendant is required to plead, a petition for such removal from a court of the state of Kansas, filed 75 days after the summons was made returIJ,able, is too late; Gen. St. Kan. 1889, requiring a declaration to be answered within 20 day!! from the day the mons is made returnable.
In Error to the Circuit Court of the United States for the District of Kansas. Action of replevin brought by the First National Bank of Leoti, Kan., in a district court of the state of Kansas, against William P. Brown, sheriff, for whom JaJIles K. Burnham, Thomas K. Hanna, Albert Munger, Fred. C. Stoepel, and Oscar L. Woodgate were substituted as defendants. On' petition of the defendants so substituted the case was removed to the United States circuit court. Verdict and judgment for plaintiff. Defendanm bring error. Reversed.
T. F. Gal'V'er a)ld T. L. Bond, for plaintiffs j.n error. E. C. Little,' (Little & Hardesty, on the brief,) for defendant in elTor. Before CALDwELL and SANBORN, Circuit Judges, and SHIRA5, District J u d g e . > District Judge, ,Qn .the 26th of November, 1889, the First NationalBltnk of brought this action in replevin the district court of Wichitacwunty, Kan., against W. P. Brown, sheriff of tb,at county, fQr the recovery of a stock of goods previlevied on by writ of issued in a suit brought by $e ftrm of Bur;J;lham, HAAJl8:, Munger & Co" against S. C. Haines. The swnmons. issued and sery.ed in the replevin action was returnable December 26th. On tlw 19th-of December.the defendant Brown and filed a. the court to grant an order substituting in hiS stead as defendants in said q,ction, James K. Burnham, Thomas K. Hanna, Albert H. Munger, Fred. C. Stoepel, and Oscar L. 'Voodgate, partners in .business under the firm name of Burnham, Hanna, Munger & Co., on the ground that he, the said Brown, had: n<;)personalWteres,tip. the matter in controversy, being interested only in his official 6apacity as sheriff of said Wichita county,:al1d.that the parties abeve, named were the plaintiffs in the suit wherein the writ of attachment had been issued upon which the goods in controversy had been seized. On the 11th day of March, 1890, tmsmotioI1 for·an order ,oft substitution came up for hearing before tp.e district. cOllrtofWichita county, and the motion was grante4; :a:hrhliereupon saidnhrhham, Hanria, Munger, 'Stoepel, and Woodgate entered their appearance in said case, and by order of the court were· substituted as defendants therein, in place of the original defendant, W.P. Hrowl1. ,On the same day, to wit, March 11, ISDO, the parties thus sUbstit'\lted,' as filed a petition for tIle re: aJ,oval of tJl.ecase into. the Untted States circUit court for the district of Kansas on ,the', ground: of diverse citizenship, it being averred that the First National Bank was, when the action was brought, and continued t?'be,a'citizen of the state of Kansas, ilithat it was a corporation created uri6er.the etatu:lies of tlie United States, and authorized to carryon business in said sta.te, and that the defendants Burnham, Hanna, Munger, and Woodga.te were, when the suit was brought, and still are, of MissoiIri, and the defendant Stoepel was and is a citizen of:Michigan, and thai; the amolint involved was in excess of $2,000, exclusive of interest and costs. The state court granted an order of llemoval, and thereupon a transcript of the record was filed in the United States circuit court at Topeka, Kan., and subsequently a trial w,as had before the court and jury upon the merits, and a jUdgmentwas ordered and entered in favor of the plaintiff below, to reverse whieb. the case has been brought before this court upon writ of error, the errors assigned presenting- questions arising. upon the :r<ul· ings of the court in the rejection or admission of evidence, and in directing the jury to return a verdict for the plaintiff below. It does not appear from the record that any question was made in the circuit
BURNHAM V. FIRST NAT. BANK.
court as to the jurisdiction of that court over the case, nor has such question been suggested by counsel in the submission of the case to this coUl't. yet the facts stated by counsel in their briefs so plainly indicated a lack of jurisdiction that we have been obliged, under the well-settled rule established by the supreme court, to look into the transcript, to see whether, under any view of the facts, the jurisdiction of the circuit court could be sustained. It is said by the supreme court in Railway Co. v. Swan, 111 U. S. 379--383, 4: Sup. Ct. Rep. 510, thatr"The rule, springing from the nature ana limits of the judicial power of the United States, is inflexible and without exception, which reqllires this court, of its own motion, to cleny its own jurisdiction, and, in the exercise of its ap· pdlatc power, that of all other courts of the United States, in all cases where sueh jurisdiction does not affirmatively apPE'ar in the record on which, in the exercise of that power, it is called to act. On every writ of error or appeal the first and fundamental question is that of jurisdiction, first of this court, and then of the court from which the record comes. This question the court is bound to ask and answer for itself, even when not otherwise suggested, and without respect to the relation of the parties to it. * * * The reason of the rule and the necessity for its application are stronger and more obvious when, as in the pre!!ent case, the failure of the jurisdiction of the circuit court arises, not merely because the record omits the averments necessary to its existence, but because it recites facts which contradict it."
What, then, does the record in this cause show on the question of the jurisdiction of the c'ircuit court? We note, but do not consider nor determine, the question whether, under the rule laid down in Buck v. Colbath, 3 Wall. 324:, and other like cases, the circuit court should not have refused to entertain jurise diction of this case on removal on the ground that, being an action in replevin, brought originally to retake from the officer of the state. court property by him heJd under a writ of attachment issued from the state court, the comity existing between courts created by different sovereignties did not demand that the United States circuit court should refuse to take jurisdiction by removal of an action which it would not have entertained if brought in that court by original proceedings. Passing this question, and assuming, for the purposes of this case, that the form and object of the action did not create an insuperable barrier to the exercise of jurisdiction on part of the circuit court, the query is whether the record shows that it was a case removable by rp''''lon of the diverse citizenship of the parties, which was the grOUllJ relied on in the petition for removal. It is well settled that the diversity of citizenship between the litigants must exist at the time of the commencement of the action, as well as at the time when the application for removal is made. Gibson v. Bruce, 108 U. S. 561, 2 Sup. Ct. Rep. 873; Akers v. Akers, 117 U. S. 197, 6 Sup. Ct. Rep. 669; Stevens v. Nichols, 130 U. S. 230, 9 Sup. Ct. Rep. 518. The record of the case at bar shows that when this action was com· menced the parties plaintiff and defendant were citizens of the same state. Under the provisions of the act of August 13, 1888, national banks are deemed to be, for jurisdictional purposes, citizens of the state wherein they are located, and they no longer possess the right of removal on the ground that they are federal corporations. Petri
. ,J1$DERAL REPORTER,
The First National ;Bank,:of...Leoti, theplaintiffbelowt was therefore, when the action citizen ofthestateofKansaBtas.i was also the defendantt W. P. Brown,. the sharM of Wichita countYt in said state. Qlearlytthereforejwhen the action watIl<brought, it 'Was a suit pend· ing between citizens of the same state,and, as the record then was, it· could not be removed into the· lderaJ court. In the petition for removal it was averred that at,.the time the suit was commenced the individual members of the firm of Burnham, Hanna, Munger & Co. were citizens ofatates other than Kansas, and the right of removal seems to have been rested on the theory that it was the citizenship of the SUbstituted defendants that determined whether the cMe was or not remoyable. : tInder the.ruling of the supreme court in Pirie v. Tvedt, 115 U. S. 41t 5 Sup. Ot. Rep. 1034, 1161; Sloane v. Anderson, 117 U. S. 275, 6 Sup. Ot. Rep. 730; Phelps v.Oaks, 117 U. S. 236, 6 Sup. Ot. Rep. 714:;f\.nd Hedge 00. v. Fuller, 122 U. S. 535, 7 Sup. Ot. Rep. 1265,theaheriff, so long as he was a party to the action, could not be regarded as a nominal party therein. He was, when the suit was brought, the sole defendant, and was liable in the first instance to the plaintiff for all damages and costs recoverable in the action in case it was adjudged that the right to the pOl'lsession of the property belonged to the plaintiff below. His position was not that of a nominal party, but he was, in fact, the sole and actual defendant, and the action was one between citizens of the same state, and therefore, when the l!luit was brought, the condition of adverse citizenship necessary to ereate the right of removal did not exist. The substitution of other parties for the original defendant did not change the character of the action in this partic1ilar. Mter the substitution had taken effect it was still true that when the action was commenced the" parties thereto were citizens of the same state, and the essential element of diversity of citizenship at the time of the institution of the suit was still lacking. It is well settled that, as regards the right of removal, substituted parties have no other nor greater rights than the party in whose stead they are substituted. Thus, in Cable v. Ellis, 110 U. S. 389-398, 4 Sup. Ct. Rep. 85, it is said:
"Be took his place by intervention in the suit, subject to all the disabilities that rested at the time the party In whose stead he is to act. If his application to have his lights in respect to the improvements he has put on the propertl s«:,ttled ill this. suit can be entertained at all, it will be only as an incident to the original controyersy, 'and whatever would bar a removal of suit before he intervene4 will. bar him afterwards, even though by his interd vention he may have rais 7 a separate controversy."
l'. ]lankj ·14:2 U"S.644, 1.2 "Sup. Ot. Rep.:: 325.
In Railway 00. v. Shirley, 111 U. S. 358--361, 4: Sup. Ot. Rep. 472, it is said:
"In Gibson v. Broce, 108 U. S. 561,2 Sup. Ct. Rep. 873, itwRs decided that under the act of Maroh 3,1875, (chapter 137,) a suit coUld not be removed on the ground of c.itiZensh1IP, unlel:ls the requisite citizenship eXisted, both when . the suit was begun and. when the petition for removal was filed; and in !lable v. Ellis, 110 U. S. 389, 4 Sup. Ct. Rep. 85, that a substituted party comes into a suitsubJedf to all the disabilities of him whose place he takes, so far as the right of removal is concerned."
BURNHAM 'V. FIRST NAT. BANK.
Under the doctrine of these cases, parties who come' into the case as substitutes for one or. the othel' of the original parties thereto cannot exercise the right of removal if such right did not exist in favor of the party in whose stead they are substituted; and, as the record clearly shows that the original defendant in this action never possessed the right. of removal, it follows that the present defendants, as substitutes taking his place, .did D,ot have the right to remove the case. Furthermore it is equally well settled that if a right of removal has once e.,,;:isted, but has been terminated by lapRe of time, or by a failure to exercise the right witbinthe time limited bY:th.e statute, it.cannot be availed of by one who causes himself to be associated with or substituted for the defendant, against whom the bar of time has taken effect. Railway Co. v. ShiJ,'ley, 111 U. S. 358, 4 Sup. Ct. Rep. 472; Fletcher v. Hamlet, 116 U. S. 408, 6 Sup. Ct. Rep. 426. .By the provisions of section 3 of the act of August 13, 1888, it is requir'ed that the application for the removal of a cause on the ground .of diverse citizenship must be filed in the state court not la.ter than the time when, under the statutes of the state or the rules of the court, the defendant is required to answer or plead to the declaration. By section 4188 of the General Statutes of Kansas, compiled in 1889, and in force when this action was brought, the defendant in this action was required to answer the declaration within 20 days from the day when the summons was made returnable, which was on the 26th of December, 1889, and therefore the time within which a petition for the removal of the cause could be properly :filed would terminate in 20 days from that date, whereas in fact it was not :filed until March 11, 1890. The application was, therefore, not within the time limited by the statute, and for that reason the case was not one of which the United States circuit court could rightfully take jurisdiction. Railroad Co. v. Daughtry, 138 U. S. 298, 11 Sup. Ct. Rep. 306. As it thus clearly appears on the face of this record that the circuit court did not have jurisdiction of this case, we are precluded from considering the questions discussed in the briefs of counsel, and must reverse the judgment of the circuit court for want of jurisdiction; thus holding for naught all that was done in that collrt,-a result which should impress upon the trial courts, as well as upon counsel interested in cases sought to be brought therein, either originally or by removal, the need that exists for ascertaining in every case that jurisdiction in fact exists, and is made to appear affirmatively on the record, before the litigants are subjected to the delay and expense caused by a trial on the merits, followed by a reversal of the judgment for want of jurisdiction. The judgment is therefore reversed, and the circuit court is directed to remand the case to the state court for want of jurisdiction; the plaintiffs in error to pay the costs in the circuit court and in this court.
T. ATLANTA &e,F. R, CO. eta!.
, (Circuit 06\\1'1:, N. D.
, In.a,sWtht'onght lti'o. State court by 11 citizen of the state agnlnst · , '111so Ii. citizen of the li'tate, setting upcertaln claims and lif\1l$, WIlS made a party defendant. 1}r,illg of another state, the, trustee removed the cause on the 'gl'ourid of a separate controversy between it and plaintUI. Held that, as judgment determining the rights an(I fixing the priority of liens of plaintitralld the., trustee would of neoessity be against the company, there was no separ!lte controversy between the former two to justify a remoVl11 under the act of 1883, § 2, cl. .8. Ayres v. Wiswall, 5 Sup. Ct. Rep. W, 112U. S. 187: Deposit Co. Huntington, 6 Sup. Ct. Rep. 733, 111 U. S. 280jYoungv. Parker's Adm'r, 10 Sup. Ct; i Rep. 75, 132 U. S. 267; 12SUIl. Ct. Rep. 720, 144 U. S.533;and In re San anA. P. Ry. 00., 44 Fed. Rep. 145,-followed.
InEquity. Suit in, the state court by E. W. Marsh and others a.ga.inst 'the' Atlanta & 'Florida Railroad Company. The Central 'lTustOompany of New York was, by order of the court, made a pal'ty defendUnt,a:nd thereupon removed cause to this court, on the ground of Ii. separable controversy. Heard on motion to remand. Granted., ' Payne & Tye, for complainant. C.Z. Bla,J()ck, for defendant Atlanta F. R. Co. I;[. B.Tompkins, for.defendant Central Trust Co. of New York.
DistIjet .Judge. 1. This is a motion to remand. The is to court by the Central. Trust Company of New York, on ,the ground that there is a separable controversy between it and other parties to the suit. The petition for removal, which state'court, sets out: was ,:filed in
"Petitionel1' hilS with each, ot the complainants lti said suit distinct from the other; and petitioner further shows that it also has , dispute the said Atlanta & Florida Railroad Oompany, a party defendant m said cause, Which Is separa,hle and distinct from any question of dispute that petitioner may have with the parties who are nominally complalnanrs lnsaid cause."
"On the'argumentof the case, however,the separable controversy insisted upon is between E. W. Marsh, who is a party complainant, ana the Central Trus1;Company of New York, made, by order of the s1;&te court, party defendant. In themidst of other business, the court has not had opportunity to prepare any elaborate opinion, expressive of the views entertained On the authority, however, of Ayres v. on the question 'Wiswall, 112 U. S. 187,5. Sup. Ct. Rep. 90; Safe Deposit Co. v. Hun· tington, 117 U. S. 280, 6 Sup. Ct. Rep. 733; Young v. Parker's Adm'r, '132 U. So 267, 10 Sup, Ot.Rep. 75; Sharon v. Tucker, 144 U. S. 533, 12 Sup. Ct. Rep. 720; and In re San Antonio &A. P. Ry. Co., 44 Fed. Rep. 145,-the court must determine that no separable controversy exists in this case, such as would justify removal under the third clause of section 2 of the act of August, 1888.