372
FEDERAL REPORTER.
COOLEY ",.'MCARTHUR
et al.
((Jircuit Oourt; E. JJ. Michigan. .July 2, 1888.)
1.
"REMOVAL OF CAUSES-AcTION AGAlNsT NON-REsIDENT-ALIEN ACT OF
1887. The circuit courts of the United 'States have jurisdiction, by removal, of a suit begun in a state court by'a resident citizen against a non-resident alien defendant. notwithstanding the provision of the act of 1887 that "no civil suit shall be brought before either of said courts against any person by any original process or proceeding in any other district than that whereof he is an inhabitant." 1
2. SAME.
In such case jurisdiction exists by virtue of the citizenship of the plaintiff and alienage' of the the provision that the defendant shall not be sued in any other district than that of which he is an inhabitant is only he may Qf may not avail himself, as a personal exemp, a privilege. tion from suit within such other jurisdiction.! (Syllabu8 by the Oourt.) ,
On Motiool'to Remand. This was an.Rction of tortbegrin in the circuit court for tre .county of Wayne by a citizen of Michigan against non-resident alien defendants, Plaintiff moved and removed to this court upon petition of to remand upon the ground that uMendants, not being inhabitants of of this district, within the meaning of section 1 the act of March, 1887, the case is not one of which this court would have had original jurisdiction, and therefore, under section 2, it can have no jurisdiction by removal. . Ayred RU88eU, for plaintiff. H. O. Wisner, for defendants· .BRoWN, J. By the first section of the act of March, 1887, the circuit all suits of a civil nature involvcourts are given original ing upwards of $2,000, in which there shall be "Ii. controversy between citizens of a state and foreign states, citizens, or subjects," with the further proviso that "no civil suit shall be brought before either of said any person by any original process or proceeding in any courts other district than that where,of he is an inhabitant," with an exception to this proviso not necessary to be noticed here. By the second section the right of removal is limited to cases "of which the circuit courts of the United States are given original jurisdiction by the precedingsection," and a further clause provides that sUCll right can only be exercised "by the defendant or defendants therein being 11on-residents of t:hat state." It necessarily follows that, if this court would have original jurisdiction of an action against a non-resident alien; we have jurisdiction of this case; otherwise. not. The language of the first sectioninllicates very that if the defendant chose to plead in abatement of $ucb a suit the plea would be We regard it as Clear, howevar, that if such plea were not interposed, and the detendantpleaded in bar, 1See Dote at end of case.
COOLEY t1.
M'ARTHUR.
373
it would be a waiver of plea, and the judgment would be valid. The difficulty arises from a misapprehension of the distinction between cases of which a court ha$ not jurisdiction,and cases in which the de· fendant is privileged from suit within the jurisdiction. In the first class of cases all the facts necessary to give the court jurisdiction must be averred in the pleadings, or the judgment will be a nullity. In the second class no averment is necessary; the privilege is one which may be waived, and is waived by a plea of the general issue. The case under consideration falls within the latter category. As the action is between a citizen and an alien, and it so appears by the pleadings, the court has jurisdiction of the case; and as the defendants themselves have invoked this jurisdiction, their action is a clear waiver of any personal privilege as to them, and it does not lie in the mouth of the plaintiff to make the claim for them. The distinction here drawn is by no means a novel one. So long ago as 1823 Mr. Webster moved to dismiss the case ()f Gracie v. Palmer, 8 Wheat. 699, upon the ground that there was no averment in .the record· that the defendant in the circuit court was an inhabitant of the district, or was found therein at the time of serving of the writ: Mr. Chief Justice MARSHALL stated, however, that the uniform construction under the judiciary act had been that it was not necessary that this averment should appear upon the record; lCthat it was sufficient if tho court appeared to have jurisdiction by the citizensqip or alienage of the parties. The exemption from arrest in a district in which the dettmdant was not an inhabitant, or in which he was not found at the time of serving of the process, was the of the defendant, which he might waive by a voluntary appearance; that if process was retilrned by the marshal as served upon him within the district, it was sufficient; and thatwhere the defendant voluntarily appeared in the court below, without taking the exception, it was an admission of the service, and a waiver of any further inquiry into the matter." In the more recent case of Ex parte Schollenberger, 96 U. S. 369-378, Mr. Justice WAITE observed: "The act of. congress prescribing the place where a person may be 8uedis not one affecting the general jurisdiction of tIle courts. It is rather in the nature of a personal exemption .in favor of a defendant, aDd is one which he may waive.. If the citizenship of the parties is sufficient, a defendant may eonsent to be sued anywhere he pleases; and certainly jurisdiction will not be ousted because he has consented." . See, also, v.. Oity oj OhiUicothe, 6 Fed. Rep. 599. In the light of these authorities there can be no question that, if this suit had originally been begun in this cou'rt, and the defendant had, with or without service of process upon him, entered his appearance and pleaded to the merits, the conrt might have lawfully proceeded with the the case; in other words, the court would have had full jurisdiction. Practically the same yiew o[thisquestion is taken by JudgeSHIRAs in Fales v. Railway (b., 32 Fed. Rep. 678-676, and by Judge HAMMOND in Gavin v. Vance, 33 Fed. Rep. 84. It results that the motion to remand must be denied. '
374 , ,I,'
FEDERAL REPORTER; .
NOTa
.
REMOVAL OFCAUSES-CITIZENSmP OF P;&B";IES-AQT :M:AI\l;s:8, 1887. Under act Congo March a, 1887, deftning the jurisdiction of 'federal courts, which provides that when jurisdiction isfounQ.ed on the fact that 1ihe l/.Otion .is between citizens of. different states. suit shall be brought only in.the district where either the plaintiff or defendant resides, an action brottghtin the state court of plaintiff's' district against a non-resident defendant may b.e to the federal court by the. defendant, Tiffany v. WHee, Fed. Rep. 280; and he may remove it to the federal court of the district of which plaintiff is a resident, Mining Co. v. Markell, 33 Fed. Rep. a86i Swayne v. Insurance Co., ante 1. But a defl'ndant cannot remOve a cause brought a state court of the state of his residence. Anderson v. Appleton, 32 . Fed. Rep. 855; Weller v. Tobacco Co., ld. 860.' . . '. ForeigncorporationBsued in a state court by a citizen of the state have a right to remove the cause: under thestatute.. Wilson v. Telegraph Co., Fed. Rep. 561; County Court v. Railroaa Co., QIl'Lte, 161; Railroad Co. v. Foi'd,Td. 170·
JOHNSON
v.
ACCIDENT
INS·. CO. OF NORTH A.MERICA. June 19, 1888.) IN AnATEM1IlNT TO '
(OirlJ'Uit (hurt. W; D. J/.ichigan. RBUOVAL OF PETITION BOlt REMOVAL.
A plea in abatement to a petition to remove a caSe from a state to a federal court will not be tested by technical rules, but it is sufficient if it sets out fairly and with sufficient certainty matters of fact which, If"tr'ue, negative the juris'. . . diction .of the federal court. I
'At Law. ',On demurrer. , . Action Qrought by Gertie Johnson in a state court against the Aooi.. dent Ins",ranceqompany of North America. ,The cause was then removed to the circuit court of the United States ,for the Western district: of Michigan ona petition of the defendant alleging that plaintiff was a citizen of the state of Michigan, and defendant a. corporation organized and existing under the laws of the dominion of Canada·. Plaintiff then filed the fqllowing plea, in nature of a in abatement, to the pe. .. And. the said Gertie Johnson, plaintiff in this suit,by Wheeler, Bishop & Blodgett. hetattorneys, comes, and prays judgment of the said defendant's petition for tbe removal of this cause from the circuit court for the county of Mason, state of Michigan. to this court. anti whether this court will further retain jurisdiction of this cause, beC!1use she says that,at the time before the commencement of her said action in the said circuit· co.urt for the comity of Mason, she, the said plaintiff, was a citizen of Finland, and a subject of the czar pt, Russia. and that sbenever was a citi7.en of the state of Michigan. nor R any of the states ()r territories of tbe United States; and, further, that the said defendant, at the .time of the commencement of said suit as aforesaid, and ever since, has been and now is a foreign corporation formed and existing under and by virtue olthe laws .of the dominion of Canada, as appears from said defendant's petition for the removal of this cause to this court; and this the said Gertie Johnson is ready to verify. Wherefore she .' 'As to pleading and procedure on removal of causes, see Railroad Co. v. Ford, ante. 170; Larson v. Cox, (Kan.) 18 Pac. Rep. 892, and note.
