650
FEDERAL riEPORTER.
The answer of the that she was fully advised as to the nature and character of the' bond which she borrowed, and Bile must be presumed to have known the provisions' of the statute under which the loan was made. It follows that the plaintiff entitled to judgment against the garnishee, upon the ans!'er as it stands, for the Bum of $400 and any interest which may appear to be unpaid. TREAT, D. J., concurs.
is
'WOOLRIDGE,
Assignee, eta.,
V., McKENNA
and others. '
(Uircuit Court, W. D. l'enT!-e88e8. August 22, 1881.) 1. REMOVAL Oll' CAUSEs-TIME OF FILING TRANSCltIPT-MANDATORY AND DIRECTORY STATUTES-ACT OF MARCH 3, 1875, § 3-18 ST. 470-JURISDICTIONAMENDMENTS-REVISED STATUTES, §§ 948, 954. The provision of· the act of March 3, 1875; § 3, requiring, the transcript of the record of the state qourt to be filed on the first day of the next succeeding term of the federal court, is nf,>t mandatory, as a condition precedent to the jurisdiction of the federal court, but is directory only, as a mode of practice. The statute should be strictly obeyed, but the court, un'der the Revised Statutes, §§ 948, 954, may, and on good cause shown should, enlarge the time for filing, or cure the defect by allowing the tra'nscript to be filed nunc pro tunc. 2. SAME SUBJECT:"--INFANT DEFENDANT-How HIS BE lUMOVED-GUARDIAN-GuARDIAN AD LITEM-NEX'f }<'RTEND-CITIZENSHIP. Where the necessary jurisdictional facts exist, an infant defendant may remove his suit into the federal court as any other defendant may, and the petition for rcmoval and bond may be filed in his behalf by his regular guardian, the guardian ad litem, or a next friend, as4he case may be. The citizenship of the infant determines the jurisdiction, and not the citizenship of the guardian or next f1':end. 3. SUB':.J:cT-HoWlNFANT DEFE1"DANT IS BROUGHT IN- SERVICE OF PROCESS--SUBSTI'l'UTED PROCESS-PUBLICATION-PUACTICE IN REMOVED CAUSES WHERE THE IS AN, INFANT. e There is' no mode known to 'the' practice of the federal courts in removedcauses oy which an absent infaI\t defendant can be served with process, or brought into court by substituted process, by publication, or otherwise; and as , an infant cannot voluntarily appear or waive process, nor can anyone until process served voluntarily appear for him, it is prematnre for a guardian or next friend to remove the cause until the infant defendant has been, by proper service of process directly, or by substitution, brought into the state court, or until by the state laws some one authorized to enter his appearance luis appeared for him in that court. He cannot, nor can anyone for hini;under the authority of the state laws, al)pear in tho federal court, and hiB representative must defer the infant been properly hound to defend in the state court. Heid, th{:rBjore, where the father of an absent infant defendant appeared in thestate'court, and, as next friend, filed a petition and bond for a removal before' there had !:een any service of process or publication according to the state laws to bring in the infant I that the cause must be romullJed for want of jurisdiction over the person of the infant.
WOOLRIDGE
v.
M'KENNA.
651
4. SAME SUBJECT-VOI,UNTARY ApPEARANCE OF GUAUDIAN-R.....TIFIOATION.
Where the father and next friend of an infant defendant, who had attempted, before service of process, to J:emoye the infant's suit to the federal court upon a petition and bond undertaking to enter his and the infant's appearance in that court,subsequently to the proceedings procured an appointment as guatrd· ian from the proper state court, and thereupon, as such guardian, entered his and the infant's appearance in the federal court: held, that such appeiJ.rance was ineffectual to give the court jurisdiction of the person of the infant, or to cure by ratification the defective petition and bond for removal, although in the state court .the service of process on the guardian would bind the infant, and the guardian might voluntarily appear there for him. 5. BAME OASE ARISING UNDER THE (JONSTTI'U'l'ION AND LAWS OF THE UNITED BTATES - JURISDICTION OB' - BANKRUPTCY - BILL TO BET AtlIDE FRAUDULENT OONVEYANCES.
A bill by an.assign66 in bankruptcy to set aside a fraudulent conveyance by the bankrupt, is a case arising under the constitution and laws of the United States, of which the. federal courts. have jurisdiction, irrespective of the citizenship of the parties; but where there is an infant defendant seeking a removal, tbe petition and bond should not be filed until after service of process on the infant, or there be an authorized appearance for him in the state court. '6. SAME SUBJECT-PETITION FOR REHOVAL....:.J"URISDICTIONAL M:ENT8-- PRACTICE. .. .-
A VERHENTS-AMEND-
While the court will look to the transcript of the record Of the state courtin aid of the allegations of the petition for removal, the petition itself must contain the llecessary jurisdictionlll av,erments; and ·if alleges that the parties are citizens of different states as the basis of remova.l, the petitioner cannot prove by the transcript or 6therwise, in the support of the jurisdiction, that it is a for removal on account The allegata and probata must correspond as in other pleadings. But be amended, either by curing defective averments, or by sUbstituihig additional or new allegations; and such amendments may be made in the federal court without renumding to the state court for that purpose. 7. JURIllDICTION-OITIZENSHIP OF AN INFANT-DoHICi:L?OHANGE OF mFANT'SPARENTAL OONTROL - EMANoIPATION-,-OONSTl1'UTIb:!i-FOURTEENTH AMENDMENT.
It seems that a mmor child may, at least for thl3 purposes of jurisdiction in the federal courts, acquire a separate domicile' and citizenship from that of the father during his life-time; but that result can only 1)6 accomplished by the emancipation of the child, and a complete surrender of. the parental control, as to the choice either to the child itself or some one standing in lolX! of domicile. Anv mere consent of the father that the child may reside hl another state, however permanently, csnnot shift-the domicile; but there must be in the father no longer any right to regulate the su,bject, and the right of choice must have been tranaferred to the child or some one else l,y the father's consent, or by operation of law. Held, therefore, where the father, a citizen of Tennessee, having lost, by death, the mother and all hut one of his Children, a girl five or six years of age, removed her to Kentucky and placed her to reside permathere had been no change of domicile to constitute nently with her aunt, the child a citizen of Kentucky, but that she was still a cit.lzen of Tennessee, and the court had no jurisdiction where the _plaintiff is also a citizen of Tenne88ee. Held, also, that the fourteenth amendment .0£ .the constitution has not changed the test of citizenship in its r(Jlation to the jmisdiction of the federal courts over, the controversie3·of citizens of different stati;s.
652
rEPF:RAL REPORTER.
In Equity. l\fotion t6 remand. The first ground of the motion to remand was beeause the transcript from the state court was not filed until the seetmd day of the next succeeding term of the federal court. In explanation of this delay, the attorney for the petitioner filed an the substan. tial part of which is in the following 1Vords: " I further state that I obtained said copy a few days before the first day of the present term of this court, for the purpose of examining the same to see that it was correct. I had examined the said copy before the first day of the . term, and had determined to tile it according' to the condition of the bond, but on the first day of the term, being hurried about many matters of business, . and my presence being required in one or more of the courts-state or federal in session, the copy of the record, or the filing of it, escaped my mind, and ldid not think of it till the night'of that day and after the office of the cIer)l;. qf th.e court had beel:!. closed for the night..' Early in the morning of the next day 1 brought the copy of from my office to the court-house and bad the clerk file it at once.. I further state that the omission to file the said copy arose from the cause stated, and hot from any other cause, and not from. any desire or intention to hinder or ,delay the suit' or the progress thereof." . .
The'second ground for the InQtiQt1 waS that the petition for removal shows upon the face of it that thecaseis not removable: (1) Because neither a next friend or:guardian ad litem of a minor defend"ant can ramovethe case, or enter an appearance in the federal court in compliance with the condition of the bond 'for removal: nor can the father of the said minor, as such father, do so. (2) Because aU the parties-plaintiff and defendapt-are shown to be citiz.ens of Tennessee, and the allegation of the , petition to' contrary is shown by the record to be untrue.
The facts appeariJ;lg by the record are that the plaintiff, who is a citizen of Tennessee, filed this bill as assignee in bankruptc,r of Robert McKenna, who is also a citizen ,of Tennessee,against the said b'ankrul>t and his daughter, Maud B. McKenna, a minor, who Alleged in the bill, according to the state practice, to be "a resident"of Shelby county, Tennessee, as are the other defendants, all being likewise citizens of Tennessee. The object of the bill is to set aside alleged fraudulent conveyances of land in Shelby county, Tennessee, made by the bankrupt for the benefit of his wife and children, all of whom have died since the conveyances except this defendant, Maud B. McKenna. The petition for removal purports to be "the petition .of Maud B. McKenna, by her' father and next friend, Robert McKenna," and is signed and sworn to by him. It states that she is "a citizen and resident of Louisville, in the state of Kentucky, an,l that all the other parties to this suit, both plaintiff and defendants,
WCllOLRlDGE V. M'KENNA..
653
are citizens and residents of the state of Tennessee," and contains The bond for removal all other necessaty jurisdictional is that of Robert McKenna himself, and is conditioned that he will, "as next friend of Maud B. McKenna, on the first day of the next session, etc., enter therein a copy of the record of said suit, and appear therein and enter special bail," etc., etc. Since the transcript was filed in this court the defendant Robert McKenna, in aid of his petition for removal, and in opposition to the motion to remand, has filed the following affidavit, viz: " Robert McKenna, being duly sworn, says he is the Robert McKenna referred to in this suit, and is thefatber of MaudB. McKenna,oneof the par. ties thereto; that she. is now between five .and six years old i that he has heen living at White's Station, in Shelby county, Tennessee, for the past 19 years; ,that during the yellow fever epidemic of 1873 the mother of the affiant, and 'his then 'wife, died of yellow fever at White's Station; tlla1J!in 1878, When Memphis and the surrounding countrywa1:l'visitedby theyeIl6w fever again, that two children of affiant-being all Of his children'except Maud B. McKenna-also died of yellow lever at White's Stamon'.' These two children died September 18 or 19,1878. A day: or two afterwards affiant, with his then wife, and child, Maud B. McKenna, left the stlite'M"fellness6e' and went to Louisville, Kentucky, it being the parties:that wife and child should reside permanently in Louisville, affiant fearful that by a continued r.esidence in Shelby county he would lose the rehla'inder of his family:: Affiant to retu,tti to Shellly cOUlity for the purpose of'trYing to dispose of the property tliathis wife owned,'but expedted ,hin1llelf, after such disposal, to go to LouiSVille, with his'family. It was, however, his.first.intention to remove Ilis wifeat+d child permalllwtly to Louisville, Kentucky, when they and himself left, place. After arriving .at Louisville, Kentucky, the wHe of taken sick of yellow fever, contracted at Shelby county, 'fennessee,alld died of that disease Kentucky, October 1.1878.. Asbeforestatoo; ona'ccount <if the repeated prevalence of fever in: Shelby county, it wasaiffiant'silltention to change the residence of his wife and family, and·· his own, as. soo,n as:,poss}ble, and became D,lore fixed, if possible. the death of, .bis wife. After the death of affiant's wife, 3(ffiant being then a single man, .was Unable to properly take· charge of a girl' of the age Maud B. McKenna. Affiant therefore· placed said Maud B. McKenna with a married sister of his, Mrs. Jane Kirkup. The husband of 'Mrs. .lane Kirkup is John Kirkup, and they live in Louisville, Kentucky. By the consent of John Kirkup and the con. sent of Mrs. Kirkup the said Maud B. McKenna was placed by affiant with them. to live permanently with them in the state of Kentucky. 'I'he reasons for so doing are given above. The said. Maud B. McKenna. was so placed there with the intention of all parties that she should permanently reside there in the'state of Kentucky, and with no intention of her returning to Tennessee. The said Maud B. McKenna has so continuously resided with Mr. and Mrs. Kirkup. At no timtl since then has there been any change 01
of
654
FEDERAL REPORTER.
this intention of any of .the parties to ohange the residence of Maud B. McKenna, and itIsnow,at this date, the intention of this affiant, Mr. and Mrs. Kirkup, and the child that this residence of her with Mr. and Mrs. Kirkup for the futu,re shall continue. Atfia,nt was unable to carry out bis own intentioh to go to Louisville, KentuckY,but he and no one of the parties has ever had any other intention than that Maud B. McKenna should be a resident of Louisville."
There has, also, since the transcript was filed, been entered in the rule-day order book of this court the following appearance of Robert McKenna, as guardian of the defendant Ma'nd B. McKenna; and the letters of guardianship have been filed, showing that he,. has, since the suit was commenced, and since its removal here, heen appointed guardian of the minor by the proper court in Tenn.essee, viz. : "Robert Mcl{enna, 'Who has been by the probate court of Shelby county, gu;udian of t.he defendant Maud B. McKenna, who is a minor, brings into court here his letter .of guardianship, and enters .his l1oppearance, as such guardian, in behalf of the said minor, his said ward, to.this suit. ,. WM. M. RANDOLPH, Sol'r. .. Copied ffom Rule Docket, p. 42."
Metcal/ff Walker, for the motion. W. M., Randolph, contra. HAMMOND, D. J. The a1li4avit of the attQrney for. the petitiqner shows that. the omission to file the transcript on Jhe first day of the next session of this court was an inadvertence. It was filed on the next or second day of the session; and no injury could possibly have resulted' to the other parties by the failure to comply with the letter of the statute. It would be, therefore, a very harsh rule, and entirely at variance with the analogies of pra(}tice in this state, to hold that a slip like that. had defeated the jurisdiction of this court and destroyed the efficacy of this statute.' I bavebeen much perplexed by the conflict of opinion shown by the very few cases on the subject in the different circuits, and more by ,the very stlict rulings of the supreme court in the construction of the somewhat analogous statutes regulating jurisdiction of that tribunal on writs of error and appea.l. The principle involved depends .upon a solution of the question, whether the statute is directory or imperative, and this is always a question of delicacy and the utmost difficulty; particularly so, since there is well.grounded complaint that the coprts are too ready on one pretext another to dispense with the command of the legislature by an application of this rule. Qfconstruction. I fully agree with all that the supreme court of Mississippi said on this subject in
or
WOOLRIDGE V.M'liENNA.
655
Koch v. Briilges,45 Miss. 247,'258, and recognize the danger of substituting the caprice or will the judge for the command of the there is no 'doubt whatever that from the of ourllJ,wt,he courts bll.ve exercised the power of ing,from the letter of. the statute to attain the object of the in passing it. The Statute of Merton, c. 3, required a certain char,acter of case to be tried before the first jury, but it was construed that where there was no first jury it might be tried before the others'; "for the statute (albeit it be penal) shall not be so literally expounded that if it cannot be tried per primos jwratores, it shall not be tried at all, for verba debent intelligi cum effectu." 9 lnst. 84:, cited in an instructive opinion on this subject by the Murt of last resort in New York,-Peopwv. Sup'rs of Ulster, 34: N. Y. 968,-and in Rex v. Loxdale, 1 Burr. 445, everywhere recognized as the leading case. Lord Mansfield declared that "there is a known distinction between circumstances which are of the Msence of the thing required to be <lone by an act of parliament and olausesmerely directory. ,The p!1'ecise time, in many cases, is not oBbe 8ssence." ld. And, as is well expressed in People v. SUp'1'S of Ulster, supra, the indicia by which the courts determine the intention of the legislature are.so'well known, and the rules by which a statute is held to" be directory or imperative have been so long in practice, that," ,
'<, Legislati
to them, as it is in their power to use In.nguage so that the statute must be mand&tory,thereby excluding the power of the court, to construe them as directory. These rules do not subvert, but carry into tion of the law-giver, as it is to be gathered from the phraseology of the statut'e. A strict and literal adherence to the letter' and form ofa statute in minor or non-essential particulars will often defeat a remedY'" or destroy a right which it was the principal intention of the legislature to create or provide."
v-e bodieB must be presumed to have enacted statutes with reference
The supreme court, in U. S. v. Kirby, 7 Wll.l1.482, 486, says:" "All laws should receive a sensible'construction. General terms should be so limited in their application as not to lead to injustice, oppression, or an absurd consequence. It will always, therefore, be presumed that the legislature intended exceptions to its language which woulli avoid results of this character. The reason of the law, in such cases, should prevail over its ." . letter."
Again, in French v.Edwards, 13 Wall. 506, 511, it says: ,. There are, undoubtedly, mallY, statutory requisitio?s fqf ,the guide of officers in the conduct of business devolved upon them 'which do. ilOt limit their power, or render its "exercise in di$fl;\gard of the fectual. Such; generally, are 'regulati6hsd'eBigned to secure .order; systelll,
656
PEDERAL REPORTER.
and dispatch in proceedings, l\nd by a disregard of which the rights of parties interested cannot be injuriously affected. Provisions of this character are not usually regarded as mandatory, unless accompanied by negative words importing that the acts required shall not be done in any other manner or time than that designated. But when the requisitions prescribed are intended for the protection of the citizen, and to prevent a sacrifice of his property, and by a disregard of which his rights might be and generally would. be injuriously affected, they are not directory but mandatory. They must be followed or the acts will be invalid.. 'fhe power of the officer in all such cases is limited by the manner and conditions prescribed for its exercise."
In that case the statute in controversy was held to be mandatQry; and so in the great Case of Galpin v. Page. 18 Wall. 850. the same principle was .applied in its relation to the jurisdiction, of courts of special and limited au:thorit.y; and, as is there and dantly shown, it is often applied in superior courts of general juris,. diction, where they are exercising special powers, not according to the course of the common law, by regular process and personalserv. ice in the usual form of common law or equity proceedings, but by seizure of property-as in attachment cases, for example-or some substituted. process, or else where these special powers are exercised over a class of cases not within their ordinary jurisdiction, upon the performance of prescribed conditions made essential to the acquisition of the jurisdiction itself. The case at bar does not, in my judgment, fall within any of these categories, and the mistake that i!:l made in holding to a rigid and literal compliance with this requirement of the statute, that the copy of the record is to be entered "on the first day" of the next session of the court, is in supposing that it does, and that it is, therefore, a jurisdictional feature of the statute. We are not, in the exercise of our jurisdiction of removable causes, any more than in cases originally brought here, proceeding as a court of limited and special authority, nor as a superior court of general jurisdiction, exercising powers which are not aocording to the COUrse of the common law and its regular co'use of process and personal service, nor yet such a court taking jurisdiction over a class of cases not within our ordinary jurisdiction. But we are a court of general jurisdiction, with this subject-matter embraced within the ordinary scope of our powe,rs, and we are not proceeding by extraordinary processes, as attachment or publication or the like, but strictly upon personal service in the ordinary way. If it be an attachment suit, the same thing may be said of it, except that we are in the same predicament as the state court, and are only ext:rcising concurrently its jurisdiction, whether
WOOLRIDGE V. M'KENNA.
657
general or special. But even in that class of cases we are not exercising a special jurisdiction because of the removal, but because it was special in the state court and must be. so here, and for the same reason. It is true no process issues from this court, but it does from the state court; and where the case comes within the influence of the constitution and laws of the United States and is removable here, the parties to the process understand that they are summoned not only to the state court, but, if the adversary party or they choose, to the federal court as well, to settle their controversy. Moynahan v. Wilson, 6 Cent. L. J. 28; McLeod v. Dlmcan, 5 MeL. 343. The jurisdiction is conferred by the comtitution, and is plenary and exhaustive. This act of congress has vitalized the grant and regulated the jurisdiction. The second the jurisdiction in removal causes, prescribes the class of cases to which we are authorized to apply it, and in itself contains no c,ondition precedent or subsequent upon which its exercise depends. The third and seventh sections, relating to the matter in contention here, are purely practice regulations by which a method of procedure is pre. scribed, and are not at all jurisdictional. This may be said, it seems to me, of all the sections to this act, except the first and second, and that clause of the seventh which punishes the clerk of the state court for refusing a cupy of the record, and confers jurisdiction of the offence. The framework of the statute indicates a purpose to define the whole civil jnrisdiction of the court in the first two scctions, and to regulate the practice in removal cases in the others; and to this were (perhaps subsequently) added in the eighth and ninth sections independent regulations applicable to all cases, whether originally brought here or removed. This is shown by the title to the act, which is instructive on this point. The whole statute must be looked to in construing any part, unquestionably; but then this obvious separation of subjects is equally as important and available as an indicatiou of the intention we are seeking. Act March 3, 1875, (18 St. 470.) We are, then, in the construction of thie statute, authorized to treat it, not as one conferring extraordinary jurisdiction or prescribing extraordinary processes and methods of procedure, (except, perhaps, the eighth section, regulating substituted process,) but as one grant. ing ordinary jurisdiction and regulating the practice applicable to it. There is, as the books disclose, a vast difference between the two kinds of statutes in the rules of construction to be applied, the oue being strict and the other liberal v.8,no.9--42
658
'If a citizen had any general or common right to have his case tried in the state court, and this statute were in derogation of that right, there might be some claim for a strict construction; but it is not at all a common or preferred right or privilege, and the right of the other citizen with whom he litigates to have it tried in the federal court is entitled to the same consideration. Therefore, the idea that the proceeding of removal is in derogation of a right, or is extraordinary, in the sense of these rules of construction, and to be so strictly construed that everything is to be taken against it, is untenable. We are to construe it just as we do the statutes giving us original jurisdiction, or as the state courts do statutes regulating their ordinary jurisdiction. Indeed, it is original jurisdiction, and the only difference is in the mode of acquisition. Murray v. Patrie, 5 Blatahf. 343, 346. It IS not appellate, nor supervisory, nor extraordinary, but peculiar; and the peouliarity is that the contending citizens use the process of the state courts to originate their litigation, and subsequently get their controversy into the ,federal court by removal, instead of going there directly, and either has a right to do it There are some circumstances under which it is necessary to do this to obtain the benefit of statutory rights and remedies, that could not otherwise be conferred; as, for example, where a simple contract creditor files a bilI in this state to set aside a fraudulent conveyance, and thereby acquires a statutory lien he would not have, perhaps, if the same bill were filed in the federal court. T. & S. Code, (Tenn.) § 4288. Undoubtedly, in the matter of regulating suits, whether commenced here or brought here after being commenc,ed elsewhere, congress can prescribe such conditions precedent for the exercise of the jurisdiction as it chooses; and if it has said that, as an inexorable rule, we ahall not proceed in 'this case unless the record is filed on the first day of the term, we must obey it. But the statute does not say so explicitly, and it is purely a matter of construction. Being open for' con· struction, the question is, shall it be construed strictly against· the jurisdiction, or liberally in favor of it? If it be a condition precedent, nothing can dispense with it, not even inevitable accident; and this seems to me an "absurd consequence," considering the' nature of the case, and the character and purposes of thejurisdiction,Rs declared by the constitution, and shown by the history connected with its place in that instrument. Grammatical analysis of the third section does not disclose any intention to attach a forfeiture of the jurisdiction to a failure to file the record on the first day; nor does the seventh sec-
659
tion; while the latter says that if filed within 20 days, in the cases there provided for, "such filing and appearance shall be taken to satisfy the said bond in that behalf." This bond seems an important matter, and this statute, and all .that have preceded it, instead of inflicting the penalty of forfeiting the jurisdiction, have provided another and a special remedy against neglect, which is a penal bond to secure to the adversary party his. damages for it. Whether the court does or does not take jurisdiction after a failure to file the rec. ord, this bond protects the party against any injury he has received. Morri8sey v. Drake, 10J. R. 27; Horton v. Miller, 38 Pa. St. 270. It may be a condition precedent in the construction of the contract contained in the bond, which may not be excused, even if it becomes impossible by the act of God, much less by the act of the party. 3 Comyn's Dig. (5th Ed. A: D. 1825; by Day,) tit. "Condition, D 1," p. 96; ld. "L, 12," p. 121; 1 Comyn's Dig. tit. "Action on the Case, G,"p. 330. But itdoes not follow that it is a condition precedent to the juri8diction of the court. The cases consulted frequently point to the remedy by personal action against the defaulting officer or party as' a sufficient protection, without holding the statute to be mandatory; and here we have provided a special security upon that per80nal action which would still more seem indicative of an intention that the statute shall be taken to be directory. It was so held on a construction of this act of congress by Mr. Circuit Judge McCrary. Kidder v. li'eatteau, 2 FED. REP. 616; S. C. 1 McC. 323. But aside from this consideration this statute falls withm the cases declaring the rules by which a statute shall be held to be directory. In Brewer v. Blougher, 14 Pet. 1118, 198, it is said that it is undoubtedly the duty of the court to restrain the operation of a statute within narrower limits than its words import if the court is satisfied that the literal meaning of its language would extend to cases never designed to be embraced in it. And in Oate8 v. !:fat. Bank, 100 U. S.. 239, 244, Mr. Justice Harlan says that "a thing which IS within the letter of the statute is not within the statute unless it be within 'the meaning of the makers." In Whitney v. Emmett, Bald. 303, 316, it is said: "Laws are constrlled strictly to save a right or avoid a penalty. They are construed liberally to give a remedy or to carry into effect an object declared in the law. It is judicial legislation to confound the parts of a law which are merely directory as to acts to be done with those which prescribe acts as conditions precedent to the vesting of a right."
660 And in Russell
FEDERAL REPORTER. "'to Wheeler,
Hempst. 3, 6, it is said that, even-
'''Where a limited jurisdiction is conferred by statute, the construction should be strict as to the extent of the jurisdiction, but liberal as to the mode of proand, where a statute prescribes a form of proceeding, a substantial and not literal compliance is all that is required."
And so it was held in Heydon's Case, 3 Rep. 7,. To' be the duty of the judges at all times to make such construction as should suppress the mischief or advance the remedy; putting down all subtle inventions for continuance of the mischief, et pro privato commodo, and adding force and life to the cure and remedy, according to the true intent of the makel's of the act, pro bono publico." Potter's Dwarris on Statutes, (Ed. A. D. 1875,) 184. The supreme court of Pent;lsylva.nia says: II'It would not, perhaps; be easy to lay down any general rule as to when
, , t.he provisions of a statute are meril1ydirect'ory, and when, mandatory or tm'perative. Where the words are and relate to the 'mannetin which power or jurisdiction vested in a pilblic officer or body is to be' exercised; and not to the limits of the power or jurisdiction itself, they may and often have been construed to be directory; but negative words, which go to the power or jurisdiction itself, have never, that I am Ilware of"been 'Yithin the category. A clause is directory when the provisions. contain mere matter of 4irection and no more, but not so when they are followed by wordsofposit'ive prohibition." Bladen v. Philadelphia; 60 Pa. St. 464, 466; Norwegian " street Case, 81Pa. St. 349. ,
Where a statute directs a person to do a tring at particular time, withqut any negative words restraining him' from doing it' afterwards, or any expression from which such intent can he gathered, the i nam _ ing of the time is directory, and not a limitation of authority. 'WhIle, "therefore, the duty may be performed at a tmbsequ,ent time, and. the action be valid, because ,time IS not of the essence of the act, and is not a condition precedent to its validity, yet the statute should be obeyed, and the act done' at the time specified. IIu.qg v. Camden, 39 , N. J. L. 620. Where the object contemplated by the legislature cannot be carried into effect by another construction, there the prescribed time must be considered imperative; but when there is nothingindieating that the exact time is essential, it should be considered as directory. Colt v. Eves, 12 Conn. 243, 254. Accidents may happen which would defeat the authority if it cannot be exercised after the time mentioned. The naming the time must be, therefore, considered as directory and not a limitation of authority. Pond v. Negu,s, 3 Mass. 230; Lowell v. Hadley, 8 Met. 180. Neither the nature of the act to be performed, nor the language used by the
H'UNNA.
661
legislature, necessarily indicate a limitation of the power of the court, or a condition precedent to its exercise. Fanning v. Com. 120 Mass. 388. Where a statute required a brigade court-martial to be constituted on or before the first day of June, and it was not constituted till July, it was held valid. the provision being only directory. People v.Allen, 6 Wend. 486. A referee was required to report to the first term after the expiration of six weeks but did not till more than a year, and the statute was held directory for the purpose of expediting the proceedings and preventing delay. The law in these respects should be observed, but if a slip occurs it does not render the whole proceeding a nullity, but the officer or party delinquent should be made to respond according to the nature and consequence afhis fault. Be Empire City Bank, 18 N. Y. 2QO, 220: Berewe have, as before remarked, a,special remeely and security to compel the delinquent to so respond. ',If it be clear that no peJialty was intended to be imposed, then, as a matter of course, it is bU,t Qarrying , out the will of the legislature t'o decree' the statute. t()be ,simply directory. Corbett v. Bradley, '{Nev. lOG. It was in tpat case: a statute requirillg certain claims to be presented within 30 days, and was clearly an act of limitations, and', was held mandatory.' A sheriff was required to file his bond "within,. ,20 days;" it w.as held that it was directory, and he did not forfeit his office by failui·e. Peuple v. Holley, 12 Wend. 481. A requirement that an electioI;l return should be filed on the day subsequent to closing thepoH was only directory. Ex parte lleath, 3 Hill, (N. Y.)42. A statuta required a justice of the peace,hefore continuing a cause, to enter on the files the reasons for the absence of the signing justice"and it was held directory, and not mandatory or jurisdiCtional., , Hollamd. v. Osgood, 8 Vt. 276. A statute that for costs spould be given before process issued, and it was held that the givi:ng of. the security was not essential to the jurisdiction, because the statute did not say that the of security wasa..<londition in compliance with which only the process might issue. Nor did it provide tbat the process should be void, or be quashed, or set aside, if security should not be given. The court having general jurisdiction of the subject.matter and the parties may proceed if the security be given nunc pro tunc. Pm'ks v. Goodwin, 1 Doug. (Mich.) 56. Statutes giving jurisdiction are always liberally construed in furtherance of justice, and such an interpretation as will work a forfeiture of the 53 Barb. 407. Where the right is not favored. Pearson v. directions of the statute are given with a view to the proper, or duly
662
and prompt conduct of business merely, the provisions may be generally regarded as directory. Hurford Y. Omaha, 411reb. 336, 350. These are some of the cases indic'ating the principle governing the courts iIi this matter,and the supreme court of the United States has frequently recognized and enforced these rules in the construction of statutes. Speake v. U. S. 9 Qral1ch, 28; U. S., V. Vanzant, 11 Wheat. 184; U. S. v. Dandridge, 12 Wheat. 81; Sup'rs v. U. S. 4 Wall. 435. See, also, Miller v. Gage8;4 MeL. 436.· 'fhEl!lupreme court of Tennessee has frequently this distinction between mandatory 'and directory statutes. Mount v.Kesterson, 6 Qald,452, 459; Foster'y. Blount,l Tenn. 342; Atkinson v. Rhea, 7 Humph. 59; Sellars Y. Fite, 3 Bax. 125, 131. And in 'Gregory Y. Burnett, 1 Humph. 60, the statute requiring transcript to be filed 15 days before the sitting of the court was held mandatory, because it especially enacted that if not done the judgment belo",'\' should· be affirmed. In JacksDnv. Wiseburn, 5 Wend. 136, it is said that it is the ordinary course of the court, upon cause shown, to enlarge the time to plead or other time prescribed for any purpose by the rules of practice of the court. The rules of practice of the court, being established by the court, may be made to yield to circumstances to promote the ends of justice. But not so as to a statute: it is unbending, requiring implicit obedience as well from the court as its suitors. and the court possesses no dispensing power. But in Kelly v. Moody. 7 Hill. 156, it was said that defaults may be set aside in cases where the practice is regulated by statute, as well, as where it depends on the rules of the court. Indeed, our statutes of jeofails require amendments or acts to be done nunc pro tunc, in order to save the rights of the parties, without any distinction of that character. We have sevas peremptory as the one we are considering eral acts of which require this. A section of the Revised Statutes says.. That no summuns, writ, declaration, return, process, judgment, or other proceeding in civil causes, in any court of the United States, shall be abated, arrested, quashed, or reversed for any defect or want of form; but such court flhall proceed and give jUdgment according as the right of the cause and mat*Consult, also, Henderson v. U. S. 4 Ct. Cl. 75,83; Limestone Co. v. Rather, 4t\ Ala. 440; 1J:fc](ane v. Weller; 11 Cal. 49; Wheeler v. Chicago, 24 Ill. 105; State v. Baltimore Co. 29 Md. 517,522; stayton v. Hnling, 7 Ind. 144; Hooker v. Young, 5 Cow. 269: Dutton v. Kp,lsey, 2 Wend. 6FI; Caldwell v. Albany,\:} Paige, 574; Se;lfmour v. Judd, 2 N. Y. 464; Hill v.1Jl'aper, 10 Barb. 454,480; People v. Schermerhorn, 19 Barb. 540; Barnes v. Badger, 41 Barb. 98; Dwarris, St. 222, and notes; Id. 184; Sedgw. St. &. Const. L. '322, and notes; 1d. 368; 2 Am. Law Reg. (N. S.) 409, amI note; Cooley, Const. Lim. 77; 1 Smith, Lead. Cas. 687; 2 Ky. Law Rep. (March, 1881,) 166.
663
ter in law shaH appear to it, without regarding any such defcct or want of form, * * * and may at any time permit either of. the·· parties to amend Jil,nydefect in the process or pleadings,. upon such conditions as it shall, in its discretion and by it rules, prescribe." Rev. St. § 954. This section, both in letter and spirit, clearly confers the power and makes it the· duty of the courts to cure such defects as this unless the removal statute is so imperative as to forbid it.Mi; Chitty says that some decisions have, on the subject of amendment, made a distinction between rules of court and statutory rules of practice, but he shows that they do not go upon any want of power, but on the determination of the judges to deny the amendment in general so that obedience to the statute may be enforced. 3 Chit. Pro 54. Certainly, if this important proceeding is to be cut off from all arnendments because the mode of proceeding is regnlated by statute, it will be very much restricted. At common law, or under the English statute of jeofails, a writ of error was not amendable. 1Comyn's Dig. tit. "Amendment, 2 C, 4," p. 614. And prior to the act of June 1,1872, the power to amend it was much restricted with us, but that act enlarged the power of amendment, and conferred on the ·circuit and district conrts further power to amend all process returnable before them. 17 St. 197. And this power is still further enlarged by another section of the Revised Statutes, which saya: "Any circuit or district court may at any time, in its and upon such terms as it may deem just, allow an amendment of any process, returnable to or before it, where the defect has not prejudiced, and the amendment will injure, the party against whom. such proeess issues." u,ev. St. § 948. And it was held to cure a writ of error from the district to the circuit court returnable to the first Monday of December instead of the first Monday of November, as it should have been, and this, even though the transcript was not filed before the commencement of the term to which it was properly. returnable, the court saying the defect was one of form. Semmes v. U. S. 91 U. 8.21, 24. " Hence, if the filing of the transcript in this case, by analogy to a writ of error, can be treated as process by which we obtain jurisdiction of removable causes-and this is the most favorable view for amendable under this section of the motion to remand-it is the Revised Statutes by ignoring the defect, or allowing it to be filed nunc pro tunc, as was done where a case waswl"ongly entitled'. Fourth N. B. v. Neyha'rdt, 13 BIatchf. 393: But that it is not process in that sense I think is "clear. It ·is thefili'ng of the petition alld bond in the state court that 'operates to'tiansfljr tliec'ase; Taylur v.
664
Rockafaller, 6 Rep. (Berton,) 226; Shook v. Rankin, 2 Cent. L. J. 731; Fisk v. Railroad Co. 6 Blatchf. 362. The caSAS, commencing with Villabolol/ v. U. S. 6 How. 81, and U. S. V. CU'I"I'y, ld. 106, and running numerously through the reports, including Mussina v. Cavazos, 6 Wall. 355, and Edmonson v. Bloomshire, 7 Wall. 306, relating to the exceedingly technical rules of the
supreme court governing the acquisition of jurisdiction by that court through a writ of error or appeal by the filing of the transcript, furnish the strongest analogy in favor of the motion to remand. But, as stated by Mr. Justice Miller in the last-mentioned case, the intelligible ground of these decisions is that the writ of error and the appeal are the foundations of the jurisdiction, without which there is no right to revjse, the action of the inferior court, and that the writ of error, like all other common-law writs, becomes functus officio unless some return is made to it during the term of the court to which it is returnable. A careful comparison of th\'! language of the acts on which these decisions are made with that of the one we are now considering shows that they are not at all alike in respect of this matter of prescribing the time. Neither the act of 1789 (1 St. 84, § 22) nor of March 3, 1803, (2 St. 244, § 2,) prescribe any time for filing the writ of error or the transcript. They only adopt the com· mon-Iaw mode of proceeding known as a writ of error, which waS always returnable to the term of the appellate court next following the date of the writ, and it was here of the essence of the writ that it should be so ret,urnable in order that the court should acquire jurisdiction. But it will be seen, from an examination of all these cases in the supreme court, that a default did not have any such effect as that accompanying a failure to file a transcript in these removal causes if the time is held under the act to be essential. A new writ of error could be sued out, notwithstanding the miscarriage of the first, at any time within the time prescribed by the statute of limitations, and the case be thus carried to the appellate court. The jurisdiction referred to by Mr. Justice Miller as founded on the writ of error that is lost by the failure to file the writ and transcript is not that over the subject-matter, but that over the parties, the writ and the citation being necessary to bring them into the supreme court. Here, however, the statute does not call for any process, or prescribe any, to give this court juriSdiction of the parties to a removed cause, and we are not, as once before remarked, acting as an appellate or other supervisory tribunal into which process is necessary to bring the parties. They are brought into the state court by prpcess, and
'M'KENNA.
665
we acquire jurisdiction in that sense by the same process as the state court acquires it. The petition and bond for removal in the state court arrest the proceedings there, and, by law, the parties and their controversy are transferred here without any writ or other process ike the common-law writ of error; and it is a mistake, in my judgment, to suppose that the jurisdiction is to be subjected to the same technical rules as apply to that writ, or to treat the filing of the transcript as equivalent to it. It is immaterial what may he the status of the case between filing the petition in the state court and the filing of the transcript here. Dill. Rem. (2d Ed.) §§ 80-81. It may be in a defective state while thus in transitu, so that we cannot proceed here without a transcript; but I do not think it follows from this that the filing of the transcript is a condition precedent to be so strictly performed at the very day that unless so done we are deprived of all jurisdiction. Even in the strict practice pertaining to a writ of error there are certain dispensations indulged to prevent a failure of justice. Phil. Prac. (2d Ed.) 214, 215; 222; ld. 136. And although the writ is strictly returnable to the first day of the term, it may be filed during the term, and is good unless dismissed because not filed according to the rules; and this result is reached, for purposes of convenience and justice, by treating the whole term as one day, and that the first day, which fiction of the common law might as well be adopted to save the right of removal. Ins. Co. v. Mordecai 21 How. 195, 201. It may be said that by a like construction of another clause in the same section of this statute the time for filing the petition and bond in the state court may be enlarged, which is not permissible. Gibson v. Johnson, Pet. 44. But the distinction is obvious; for the intention is there manifest that the petition must be filed before trial actually commenced, and before or at the term at which the cause could be first tried, and not after. The phraseology necessarily shows that this provision of the statute is imperative, because it is not prescribing a precise time within which a thing must be done, but a particular condition or status of the case which will entitle it to be done at all. There is not here a direction for· filing a petition within a certain time, so much as a description of the class of cases in which aremO'Jal may be had. The idea of time is not the leading one, nor of the nature or essence of the particular subject, for it may be variable according to many circumt:ltances; but the reference to time is only for the purpose of describing the status of the case that is to be removed. It is not so in the matter of filing the transcript; and the
666
two provisions serve,jn myjudgrnent, to illustritte the whole doctrine of mandatory Ilnd directory statutes. , It does not, on the one important, hand, seem to me, at least, that congress thoughtit except for the ,prderly, and prompt dispatch ,()f business, that the transcript should 'bEl filed on the first day of the term of this court; and, on the, o'ther, it does seem impOl:tant and, necessary to fix some stage ;0£ the: proceedings in the state court ,after which there should be:no removal. , r.I:his provision is prohibitory to time, and negative in the very of the object the legislature has in view. The other is affirmative only; and where this is the case, the courts will not words "and not Mter" by implication, Ryan v. Vanlandingham, 7 Ind. 417, 424. But even this clause of the statute, under the of the principle that enhirges the remedy, hal'! been, by construction, extended so as to include cases not within letter. Removal Cases, 100 U. S. 457,473; Nat. Ba'(l,k Wheeler, 13 Blatchf. , The authority pf adjudiqated cases is so conflicting that a ruling either wity on this ,ground of .the motion to remain would find support, and I have, therefore, endeavored ,to get at the governing principle, quite independently of the cases more or less closely allied to the we have in hand. Considering that the clause we are construing has been in all the acts from 1789 to the present time, are remarkably few cases on the point to be found in the reports. The only expression of the supreme court is found in the Removal Cases, 100 U. S. 457, at p. 475. By fault of the clerk of the state court the. party did not file the transcript on the first ,day, but did on the second, and the court overruled the objection, saying:
as
"While the act of congress requires security that the transcript shall be filed on the first day, it nowhere appears that the circuit court is to be deprived of its jurisdiction if by accident the party is delayed until a later day in the term. If the circuit court, for good cause shown, accepts the transfer after the day, and during the term, its jurisdiction will, as a general fule, be complete and the removal properly effected."
This seems to leave the, question to the discretion of this court to either accept or decline jurisdiction; hut, of course, that discretion is to be regulated by the rules of law applicable to the proper construction of the statute and correct practice under it. In the cases already cited it will appear that there is much more latitude allowed where the delay is caused by the act of an official than where it is caused by the act of the party himself. 2 Am. L. Feg. (N. S.) 409,
WOOLRIDGE V. M'XENNA.
66',
and notes. In McLean v. Railroad 00. 17 Blatch£. 363, it was held, notwithstanding this decision of the supreme court, that the neglect of an attorney, like that in this case, was not an accident or inadvert· ence within the ruling, and that after a failure to file the transcript there could be no subsequent removal. This is in itself an iOlportant consideration, because, in the analogous cases of a writ of error to the supreme court already considered, the court seems to justify its refusal to take the case somewhat on the ground that, until barred by statute of limitation, a second writ may be sued. In that case the transcript was filed three days after it should have been, and it was held to be essential that it should be filed on the veq first day, to give the court jurisdiction, and that the enumeration of causes for which a case should be remanded, as contained in the fifth section of this act of congress, does not exclude the power of the court to remand for other causes. McLean v. Railroad 00. 16 Blatchf. 309. In Broadnax v. Eisner, 13 Blatchf. 366, it was held to be laches not to file the transcript on the first day unless it were shown to be impossible to procure it. In Bright v. Railroad 00. 14 Blatchf. 214, the transcript was filed on the first day of the term next succeeding that at which it should have been filed, and it was held that only a strict compliance would give the court jurisdiction. In Clippinger v; Ins. Co. 8 Chi. Leg. News, 155; S. C. Int. Rev. Rec. 47, although the removal was obstructed by the state court refusing it, which action was afterwards reversed, and immediately thereafter the transcript was filed, it was held too late. To same effect is Oobb v. Ins. Co. 3 Hughes,452. On the other hand, in McBratney v. Usher, 1 Dill. 367, and Hyde v. Ins. 00. 2 Dill. 525, it was held that if the removing party fails to file the transcript the adverse party may do so; and in one case, where the removing party had only filed a copy of the summons, when he should have filed a complete transcript, the court gave him further time. If the rigid rule of the above case, holding the time of filing an essential element of the jurisdiction, had been adopted, these cases could not have been. so decided. In Jackson v. Ins. Co. 3 Woods, 413, the transcript was filed 14 days after the first, and it was held not to be fatal to the jurisdiction, although no excuse seems to have been offered for the failure. So, in Kidder v. Featteau, supra; S. C. 1 McC. 323, where the delay was 43 days, and no excuse was offered, the jurisdiction was maintained. There seems to be the recognition of a general principle that where a cause has been removed and falls within the act of congress, it will not be remanded for irregularities which can be remedied and have worked no injury to the adverse party. Dennis v.
668
Alachua Co. 3 Woods, 683; Osgood v. Railroad Co. 6 Biss, 330,335. And the late cucuit judge of the eighth circuit seems to approve this latter class of cases. Dill. Rem. (2dEd.) §§ 83,85, und notes. See, also, 20 Am. L. Reg. (N. S.) 24, 40. Embarrassed as I have been by this conflict of authority, I am satisfied, for the reasons I have stated, that the jurisdiction should not be defeated by an excusable failure to file the transcript on the first day, notwithstanding the seemingly peremptory language of the statute, which, I think, in that respect is only directory. In this case the reasons given for not filing in time seem to me excusable, in view of the exceedingly brief delay. But I think proper to say, in the light of the authorities consulted, that I am not prepared to hold that every negligence should be excused, and the time enlarged, in all cases where no special injury to the 'other side appears, but that the true rule seems to be that the statute must be strictly obeyed, and a failure to comply with it must be reasonably accounted for, before the court 'will exercise its power to enlarge the time. Inexcusable negligence in itself imports an injury to the adverse party. And while the statute may be held. to be directory merely, and not mandatory, for the purposes I have stated, it does not follow that it is nugatory in that regard, or that the courts can ignore its plain requirement that the transcript shall be promptly filed on the first day of the term. The second ground for the motion to remand presents as much difficulty as the one just determined, and raises several important questions of practice under this statute. It must be conceded, as it is, that in a proper case, and in a proper mode, a minor defendant or plaintiff may remove his controversy into this court, as other parties may, for the act of congress makes po distinction between cases where the parties, or some of them, are infants, and where they are sui juris, but confers the right on any party to a suit coming within the jurisdiction; and it cannot be supposed, therefore, that suits by or against infants are excluded from the operation of the act. But how the removal is to be made in these cases is not prescribed, nor has it been indicated by any case or text-writer, so far as I can find from anything brought to my attention by counselor developed by my own investigations. That the jurisdiction depends on the citizenship of the infant and not that of the next friend, where he is a plaintiff, seems established. Williams v. Ritchey, 3 Dill. 406. The same is true of a married woman as plaintiff. Wormley v. Wormley, 8 Wheat. 451; Buckman v. Palisade Co. 1 FED. REP. 367.
In eases of executors, administrators, and trustees,generally, the rule is that the citizenship of the real and not the nominal party governs; and where such trustees are the real parties in interest their own, citizenship, and not that of the parties they represent, controls the question, though it will be seen that the character of the suit, as one at law or inequity, enters sometimes into the determination of the question whether the trustee or the cestui que trust is the real or nominal party. Dill. Rem. (2d Ed.) § 54, and notes, p. 68; Bump, Fed. Proc. 133, 134; ld. 176, 184. Again, the cases cited will Bhow that in removed causes the status of the case, as affected by state statutes and methods of procedure, enters into the question of real and nominal parties to the record. Now, when an infant is a necessary party to the record the necessity of binding him to what is done by proper process and methods of procedure is apparent; for, as remarked by counsel here, it is of the utmost importance, in a case affecting thE> title to land, that no mistake shall be made in the matter of jurisdiction over the person of the infant, while it may be quite unimportant whether a state or federal court tries the case, if either may properly try it under the law. ' Actions by and against infants, or rather those actions which concern their property, are so much changed by state legislation that attention must be given to rights thus acquired and distinctions thus established, or we are likely to get into confusion in administering a jurisprudence itself destitute of all statutory regulations on that subject. From the beginning these removal acts have obviateJ all necessity for process in this court by requiring the defendant, as a condition of his right of removal, to enter an appearance in this court. But, as to infant defendants, this cannot be done, for they cannot waive process or enter an appearance, nor can it be done without service of process by anyone for them. After process served, their appearance may be entered for them, but the service is a prerequisite to any authority in that behalf. In original cases in the courts of the United States, sitting in equity, there can be no defence otherwise than by guardian ad litem, and one cannot be appointed, nor the infant bound, until service of process upon him. Equity Rule 87; Bonk of the U. S. v. Ritchie, 8 Pet. 128; 0' Ham v. MacConnell,. 93 U. S. 150; N. Y. Life Ins. eo. v. Bangs, 13 Cent. L. J. 88; S. C. to be reported in 103 U. S.; Carrington v. Brents, 1 MeL. 174. As I understand the chancery practice to which we are bound by equity rules 91 and 87, an infant always sues by his next frienq and defends by his guardian.ad litem, where he is personally a necessary
670 party to the record; but the court generally devolves the duty in either case upon the regular guardian, or will sometimes Bustahdhat guardian's action in that behalf without the technical formality of an appClintment as prochein a.mi, or guardian ad litem, 1 Danl. Oh. Pro (5th Ed.) 160, § 9; Soh. Dom. ReL 592, c. 6; Id. 889, cc. 1,2; Bing. Inf. c. 9, p. 118.:But never is service of process upon the guardian alone, or upon the parent, or other substituted process of thJt character, .sufficient to bind the infant where he is personally an essential party defendant. It must be served on him in person. See the authorities above. Now, where the regular guardian has power under his appointment, whether it be judioial, statutory, or testamentary, over the estate of the infant, and occupies as to that estate such a position that a suit by him or against him will be effectual to bind it and the infant, suits brought by him and prooess served on him will be sufficient in many cases, whether the infant be regularly made R party or not. In that class of cases, the juriSdiction of the federal courts, as to citizenship, will depend wholly upon the citizenship of the guardian, as in case of any other trustee, and not that of the infant, unless it be a suit in which, in a court of equity, the cestui que trust is an indispensable party, in which event it would depend on the circumstances of the case how the court would treat the parties in deciding which would be the nominal and which the real party in interest, in view of the question of jurisdiction, or whether they would be both regarded as indispensable. If this were a case originally brought in this court, standing as to parties in the shape it now does, there is no doubt whatever that this infant defendant, like all other defendants, assuming that she is a citizen of Kentucky, would have to be sued in the distriot of her residenoe, so that prooess could be personally served npon her, if the case is to be treated as a personal action to cancel the deeds of conveyance uncler which she claims title to the land; or if it be a suit in rem, or of that nature, against the land, there might be substituted process under the eighth section of the act of March 8, 1875, (18 St. 472,) which is understood to dispense with the requirement of personal service as well in the case ofinfants as other defendants. N. Y. Life Ins. Co. v. Bangs, 8up1'a; Mohr V. Manierre. 101 U. S. 417, at pp. 421, 422. But this ca,se being removed from the state court, the question is whether we are to proceed now to bring in the infant, who has removed it, under this section of the act of congress, as her oounsel contends we may; whether we are to treat her as already in this court by reason of her petition for removal, as he also insists she is; or whether we al'e to
WOOLRIDGE V. M'KE8NA.
6'71
resort to -substituted ptocessallowed by the .practice in the state court of.'equityfrom which the case comes. . Let us look at the case as it stood in the state pourt, and see what were the rights of the plaintiff in this matter of process as against this infant defendant; for it will be. seen that the methods 'Of procedure in the two courts as to substituted process are entirely different, particularly as, to infant defendants. Generally, in the state equity courts,' any non-resident defendant can be brought into court by simple publication in a newspaper, according to the terms of the statute. T. & S. Code, (Tenn.) §§ 4352-4359; 1 Meigs'. Dig. (2d Ed.) § 605, p. 759, and cases cited. In a.ttachment cases the writ must be issued and levie,d, and also nQtice given by publication. [I. & S. Code,.§§ 3518-3526; 1 Meigs' Dig. § 275, p. 272; ld. § 605, pp. 761, 762. In suits for the .administration of estates, solvent and insolvent; in those for the sale or partition of lands of persons un,der disability; in· actions of ejectment, or other proceedings affecting their estates,-there are special regulations in regard to infant defendants whose lands are to be sold for the. ancestor's debts, or whose estates are to be divided or oonverted into money for .their own benefit or otherwise affected by the litigation. But it will be found that there is no .uniformity whatever observed in these regulations,and it depends upon the 'Qbaracter of the proceeding in eaoh oase, and often on the particular conrtin which it. is pending. Sometimes, and perhaps generally, service of process upon the regular guardian alone, whether the infant be resident or nop.resident, whether the guardian be named as a party to the bill or not, and whether it bea personal action or one solely in relation to the property of the infant, will suffice to bind the infant and his property. But this is not alwa;ys so, and sometimes both must be served; and when specially required, as it often is, the infant must be served personally, .whether he has a guardian arnot. Where there is no regular guardian, service directly upon the infant must be had and a guardian ad litem appointed; but in nearly all cases, I believe, provision is made for substituted process by publication where the infant is non-resident and has no regular guardian within .the state; but in one instance, at least, provision is made for a aa,le of his land where he is non-resident, without any substituted process or appearance for him whatever, upon a return of two nihils. T. & S. Code, (Tenn.) §§ 2257, 2260, 2261, 2338, 2380·,2516, 2517,2829, ·8257,'3264, 3325, 3652,4099, subsec. 7, § 4420, subsec. 4; 1 Meigs' Dig. §512, p. 512; ld. § 604, p. 759; 2 King's Dig. (2d Ed.) §§
672
8258, 3259, 3260, 3267; 1 King's Dig. § 1107. From this statement it will appear how different is the mode of practice in the state courts from that which obtains in the federal courts, as already described; and, as before pointed out, in these removal causes, where the parties are sui juris, the state statutes prescribing substituted :service are wholly immaterial, because the act of congress requires an appearance as a condition of removal; but'they become of vast importance when we come to determine how the infant defendant is -to be bound in a case sought to be removed from a jurisdiction where these modes are adopted to that of another, where it is either impossible to bind her for want of her presence within the juris-diction, or there is only a limited mode, in certain cases, where she is without. In the state court this case would fall within the genel'al rule where the infant defendant, upon return of process not found, as -this was, and affidavit of her non-residence, could have been brought in by substituted process of publication, because the bill alleges that -she had no regular guardian, a guardian ltd litem would have been appointed for her, and she would have been fully bound; for while the bill prays a sale of the land, at the election of the assignee, for .distribution,-to decree which, perhaps, a state court would have no jurisdiction,-it is not a bill to sell land of It person under the disability of infancy where personal service on the infant is required. It is rather in the nature of a personal suit against her to cancel as void the dfleds under which she claims, than a proceeding against the land. However this may be, it is not, I think, a case requiring under 'the state statutes personal service on the infant, but it might be served on the regular guardian, if she had one; and, in whatever view the bill be considered, being non-resident, or out of the state, and having no regular guardian in it, publication was all that was required. If it had been made to appear to the state court as it now ·does here, or by amended and supplemental bill, that subsequently to the filing of the bill a regular guardian had been appointed in this state, the court could have directed alias process to be served on him, or, without process, allowed him to appear and defend the suit, or ·else could have directed publication and appointed a guardian ad litem, taking care to appoint the regular guardian, uuless there should be some reason for appointing another. I am of opinion either of these modes would have been proper in the state courts, and have no ,doubt whatever that under the state practice the appearance of a reg. ular guardian in a case like this is all that would be required, no process of any kind being necessary if he voluntarily appears, though
673
out of abundant caution most practitioners prefer to serve process on the infant in all cases where it can be done, or to make publication if non-resident, whether there be a regular guardian: or not. This grows out of the want of uniformity in the special regulations already mentioned, and the difficulty of determining whether the given case would fall under those statutes requiring service on the infant personally, or on both guardian and infant. Having now determined that in this case-and I wish to confine the ruling to those cases where the infant may be bound by service of process alone upon the regular guardian, and leave others to be determined as they arise-the infant defendant would have been bound in the state court, without the service of any process, by the appearance in her behalf of her regular guardian, let us inquire what effect is produced by removal to this court under the peculiar facts of this case. I have shown that in an original case in this court service of process upon a regular guardian, or appearance by him without service upon the infant, would be ineff.ectual; the only substituted process known to the federal statutes being that under section 8 of the act of March 3, 1875, (18 St. 472.) That section, as I understand it, applies only to suits "commenced in any circuit court of the United States," and does not apply to removed causes, and for the obvious reason that as to these causes the act contemplates an appearance here voluntarily of the removing defendant, and no process is necessary. But this would altogether defeat the right of an infant defendant who cannot appear voluntarily to remove his case, unless some one can appear for him without process, or we resort to the state process to bring him in, for no federal process can reach him outside of the district where he actually resides. We cannot issue state process from this court, whether it be by writ or publication; and therefore it seems to me necessary to hold that where there is an infant defendant there can be no removal until, by effectual process, he has been firs.t brought into the state court and some one there authorrzed to appear for him in that court. If such person may appear there without process and bind the infant, he may appear here without process and bind him to a like extent; but there must be a preliminary appearance in the state court to supply the want of process there, so that that court should have the infant bound to answer the suit, and he be brought here with that bond upon him; for we cannot supply it, nor substitute one for it, nor can he under the law voluntarily forego or waive it, and it is absolutely v.8/no.9-43
674
necessary to the righta of the plaintiff that it should be· put upon him. And as section 4 of the act of March 3, 1875, (18 St. 471,) preserves to the plaintiff all rights he haB by virtue of the proceedings in the state court in the matter of process and the right to compel an appearance, I am of opinion that in any case sought to be removed from a state court to this court,where the removing party is an infant defendant, there must be first an appearance in his behalf in the state court by some one· authorized by the state laws to make that appearance, and that whether it be voluntary, or coerced by direct,oi' substituted process, it is essential as a preliminary. step to the removal, and cannot be supplied by ·appearanc6' here, and that the removal must be by the person authorized bv law to bind the infant by8uch an appearance. If it were not for thisneaessity of having the infant defendant bou.nd by processor an authorized appearance, as to which the law iElalways strictly to be pursued, I should not hesitate to hold that a· next friend could·file the petition and bond for removal, because, although . an infant defends by his guardian ad litem, the functions of that representative are strii:ltly defensive, and whenever the infant becomes an actor, as by filing actoss-bill or petition, he proceeds by. next friend, usually the gtiardian ad litem, acting. in that capacity in that particular suit; and even a regular guardian, with power to sue, pro. ceeds or is taken technically as the next friend. 1 Dan!. Ch. Pr; 68,69, 77, (5th Ed.;) 2 Dan!. 1595. Where the regnlar gnardian has power, under the statute appointing him, to bring suits-as he ha,s in Tennessee-of course hEi can act in that capacity, and it is wholly immaterial whether he is called guardian or next friend, and I have no doubt such a guardian may file the petition to remove. In re Brocklebank,6 Ch. Div. 358, it was held an infant might in. stitute bankruptcy proceedings in his :own name, and it is a general rule he may, by next friend, pursue any remedy others ·have. But it is insisted that a guardian ad lite·m cannot do it, because"He is to defend the suit in the court from which he derives his authority, acoonlmg to the rules and prillciples {)f law applicable to the case,as administered in that trilJUnal, and in cQuformity with the ordinary mode of trial and practice of the court in similar c!l:ses. It is not within the scope of his authority or duty to change the tribunal for the trial, or that the decision shall be upon prinCiples other than those applicable to like cases in the forum in which the suit is pending, His special and restricted powers admit of the exercise of no such discretion." Hannum's Heirs v. Wallace, 9 Humph. 129, 136.
This was said in denial of the power to submit to arbitration, and
WOOLRIDGEV. M'KENNA.
is, no doubt, a correct statement of the law. But it is a Buffic1ihit answer to it to say that congress, with plenary. authority over ,the subject, in the case of infant defendants who are citizens of other states, has, by necessary implication, conferred, the authority to remove the cause to the proper federal court; and, certainly, the principle cannot be resorted to to defeat the right of an infant defendant to a removal in those cases where he must be represented by a guardian ad litem. If the power of representation is to b'e thus strictly confined to that court and sult, it necessarily results that there can be no removal, unless we resort to the general principle that an infant may assert any right or pursue any remedy through a next friend, and in that capacity the guardian ad litem may remove the cause; and, if he refuses, I should not hesitate to' say that any regular guardian, parent, or near relation, or other person upon whom the courts devolve that duty, might act in his behalf, and such act would not be "officious," ashas been argued. It is said circumstances might exist which would render it to the interest of the infant to have the case remain in the state court, and an unwise or next friend might seek to remove it to his damage. Hsuch a state of cir. oumstances be possible, I have no doubt the federal court, acting on: the principle that governs all courts, would protect the minor by, remanding the cause, upon the ground that it was deleterious to remove it. The suit, when properly removed, proceeds under the direct command of the statute "in the same manner as if it had originally commenced in the said circuit court." Act March 3, 1875, (18 St. 471, § 3.) It would, therefore, be entirely competent for this court, after such a removal, to appoint a guardian ad litem and proceed with the case; for although the jurisdiction of the federal courts of equity does not extend to the care and protection of infants and their property generally, as do other courts of equity, those powers belonging to the states, they have abundant power to bind them and protect them in cases and controversies within their jurisdiction. N. Y. Life Ins. Co. v. Bangs, supra. My best judgment in these matters of practice may be thus summarized: 1. An infant defendant, where the case is removable, may remove his suit into the federal court by his regular guardian, guardian ad litem, or next friend, who may file the petition and give the bond; 2. But this cannot be done,until proper steps have been taken by the service of process, 'either directly ot by substitution, to bring the infant defendant into the state court according to the requirements
676
of the law of the state as applicable to that case, or until there is an appearance there for him by some representative authorized by the state law to appear for him without process. It is insisted by the learned counsel for the petitioner here that McKenna, having since he filed the petition become the I'egular guardian, may ratify what he has done as next friend, and thus perfect the removal. Potential as the principle of ratification sometimes is, I do not think it can be safely applied. to supply a want of compliance with those conditions prescribed by the statutory or municipallaw as a prerequisite for obtaining jurisdiction over the person or property of an infant. If the infant could herself ratify, it might be different. No case cited justifies the argument in favor of the doctrine. McKenna was not a guardian, either regular or ad litem, at the time of filing this petition; no process had been served or substituted by publication; and t1:e state court had obtained no jurisdiction over the infant when he came, in and as next friend sought to remove the case in her behalf. The merely filing the bill and naming her as defendant did not make her a party. She had no power to voluntarily appear and waive and no one was authorized to appear for her. Subsequently he did obtain the necessaryauthority by his appointment as guardian in a case like this, under the state statutes, to appear voluntarily, for it is a case, I think, where service of process on the guardian alone binds the infant; and where that is the case I do not see why he may not voluntarily so appear without process. But these statutes only operate in the state court, and can confer no power to voluntarily appear in a federal court where the notion of a voluntary appearance by a guardian or anyone else to bind an infant is wholly unknown. The only theory on which it could be permitted is that we. are here, pro hac vice, in these removal causes, a state court, with the same powers under these state statutes that those courts possess. I think this is not the theory of the act of congress, but the one I have indicated, which is that the defendant comes from the state court only after he is properly there by an appearance in that court. Besides this, in a former part of this opinion we have seen how strictly we are bound to the conditions of the removal act in order to acquire jurisdiction; and it seems to me plain that the petitioner cannot depend on a subsequently.acquired authority to aid the petition for removal. It is further insisted that this is a case arising under the constitution and laws of the United States and that we have jurisdiction here irrespective of Ql.tizenship, and for that reason this case should not
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be remanded. I have no doubt it is that character of case. By the very terms of the bankrnptcy acts the assignee might have filed this bill in this court, irrespective of the citizenship of the parties, and this power could not be given him if it were not a case "arising under the constitution and laws of the United States." Railroad Co. v. Mississippi, 102 U. S. 135; Lathrop v. Drake, 91 U. S. 516; Burbank v. Bigelow, 92 U. S. 179; Van Allen v. Railroad, 3 FED. REP. 545; S. C. 1 McC. 598,20 Am. L. Reg. (N. S.) 24,42; Ba,bbit v. Clark, 13 Cent. L. J. 248. But by these same acts of congress the assignee has been vested with power to bring this suit in the state court where he did bring it, and we can only obtain jurisdiction by removal as in other cases. Claflin v. Houseman, 93 U. S. 130. This petition for removal makes no mention of that ground of jurisdiction, .but is based wholly on the ground of difference in. citizenship. The character of this suit appears by the bill filed in the state court; but while we may look to that in aid of the allegations ,contained in the petition for removal, we cannot depend wholly on it to furnish the jurisdictional averments. The petition itself, like all other records in this court, must show by proper averments the jurisdictional facts, and the allegata and probata must correspond. This petition should have averred at least that it was a case "arising under the constitution and laws of the United States." Ins. Co; v. Fechner, 95 U. S. 183; Bible So. v. Grove, 101 U. S. 610; Trafton v. Nougues, 4 Sawy. 179; Keith v. Levi, 1 McC. 343; S. C. 2 FED. REP. 743; Dill. Rem. (2d Ed.) § 73, p. 89; Id. § 70 et seq. This is the rule in original cases where the declaration or other pleading must contain these averments; and I think it applies here. Ex parte Smith, 94 U. S. 455. In Ins. Co. v Fechner, supra, it is said that the "petition for removal, when filed, becomes a part of the record in the cause. It should state facts which, taken in connection with such as already appear, entitle him to the transfer." It would appear from expressions in some of the cases that we may look to the record of the state court, or to the removal petition,forthe jurisdictionalfacts; but I do not find it any where decided that, when a case presented by the petition for removal is predicated on the citizenship, we may retain it if it appears by the record in the state court to be one arising under the constitution and laws of the United States. Dill. Rem. § 70,71. Orderly proceedings require that one who seeks, by petition or other pleadings, any remedy or redress depending upon statutory grounds prescribed as conditions to that remedy, should state the facts upon which his petition is founded, and not require
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the courts to search for these averments aliunde his petition. If the fact that the suit arises under the constitution and laws of the Unitecl States may ba shown by reference to the record coming from the state court, I see no reason why it may not be shown as well by affidavits or depositions, or other evidence put in the record here for the purpose; nor why this practice should not apply as well to a declaration in an original suit, both as to subject matter and citizenship. Another reason why this averment should appear in the petition may be found in the fact that the adversary parties are entitled to know on what grounds the removal is sought, and not be left to grope in the dark; and to determine for themselves whether it is On account of citizenship or the subject matter the petitioner claims the right. It would be just as reasonable to leave the adversary party to determine for himself whether the removal is sought on account of local 'prejudice, under the act of 1867, to be proved at the hearing of the motion to remand, or because the controversy arises under a revenue law under the act of 1833, or for acts done during the rebellion by federal authority under the act of 1867, where these grounds are not mentioned in the petition. It would be a very loose practice to dispense with this averment in the petition of the ground of removal, or to allow one ground to be alleged and another relied on at the hearing of that petition, on the motion to remand. If this were the practice, I can see no need of any averment on the subject in the petition, nor why the whole matter should not be tried on the transcript, and such other proof as may be offered,without any petition at all. If this averment of the grounds of removal is not necessary, there is no other use for a petition. I am, therefore, of opinion that the petition for removal must state Lhe jurisdictional facts,and if it states one ground allowed by the statute, as that of citizenship, no other can be relied upon in reply to a motion to remand, although it may appear by the transcript from the state court that on some other ground it could have been removed. I do not think Ruckman v. Ruckman, 1 FED. REP. 587, and Norris v. Mineral Point Tunnel, 7 FED. REP. 272, are against these views, when properly considered. In the first, counsel only misconstrued the facts shown by the petition ; and, in the second, he only cited the wrong act of congress; while in both the· jurisdictional facts appear by the petition for removal, namely, the difference in citizenship. Application is made to amend the petition by inserting the necessary averment that the case is one arising under the constitution ana laws of the United States, and by allegations of the facts showing tha1
WOOLRIDGE V. M:'XENNA.
67fl
it does so Under the Revised Statutes, I have no doubt of the power 'of the courts to permit amendments to these petitions for removal. There is no'reason why they should 'be any exception to the genefal practice under thes'e statutes. Rev.' St. §§ 954, 948; Bump, Fed. Proc. 148, notes. Defective averments been amended in these petitions by permission oftlie courts, and it seems the usual liberality, under like statutes, would justify an entire change of the petition by alleging another ground' for removal than that contained in the petition. DilL Rem. § '1'9, p. '99, and notes. In 'Barclay 't. Levee Com. 1 Woods. 254, the:petitiort for removal erroneously alleged that the party was a citizen of Louisiana, and he wa.spermittedto by sho<ving' :he was a citizen of Tennessee i and in Houser v. Clayton, 3 Woods, 273, it is said these petitions may be' amended. In Kaiser v.' Railroad Co. 6 FRD. REP. 1, 5, the plaintijJsought, a removal, and anticipating that the motion to remand would be decided against him, becausEi it was not shown by thel'ecord that the difference in citizenship existed at the time the suit was commenced, asked leave to amend the' transcript from the state court, and he was perrnitted to do it, with the expression of it doubt whether he could go further in amendirig than to show a more complete transcript, and whether he could, by such an amendment, show that as a fact the difference in did then exist. The question was reserved. In Beede v. Cheeney, 5 FED. REP. 388, the cause was remanded because the petition was in the present tense, and therefore did not show that the parties were at the time the suit was commenced of different citizenship. But in neither these cases was application made to amend the petition for removal, as in the other cases already cited, where it was allowed; and I think they cannot be taken as authority against the right to amend. The requirement that the recqrd shall show jurisdiction is no more imperative in removed than' original causes; and in the latter, under the statutes authorizing the ,courts to permit amendments, they are very liberal in allowing'the jurisdictional facts to be shown by amendment of the declaration .or other pleading. Michaelon v. Denison, 3 Day, 294; Fisher v. Rutherford, Bald. 188, 193; Re McKibben, 12 N. B. R. 97, 102; Kelsey v. Railroad, 14 Blatch£. 89; Bump, Fed. Proc. 148, notes; Id. 655, and notes; Oonnelly v. Taylor, 2 Pet. 556, 564; Jackson v. Ashton, 10 Pet. 480. The statute is very broad, and says that no summons, writ, declaration, return, process, judgment, or other proceedings shall be abated, arrested, 'quashed,'or reversed for 'any defect or want of form, but the courts sh'!\ll either party
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at any time to amend any defect in the process or pleadings upon such conditions as may be prescribed, and contains, in my judgment, a legislative command to permit a petition like this to be amended to the same extent that other pleadings may. Whether they can be amended after the time prescribed for removal has expired, or rather whether the amendment will operate only from the time at which it is made, or will relate to the time when the petition for removal was filed, it is not necessary in this case to decide. r should, therefore, allow the application to amend, and retain the jurisdiction, but it does not advance the case at all, and, for the reason that we have the same difficulty as before in regard to the service of process upon this infant defendant, who must be brought into court in any event, and we have no method of getting her here under our practice. We cannot send a snbpoona to Kentucky for her, nor can her guardian voluntarily appear, without personal service, according to our practice. He may do that in the state court, and her appearance may be compelled in that court by publication, but not here, for the reasons already stated in this opinion.· Where a suit is brought in a federal court, and an indispensable party is out of the jurisdiction, it must be dismissed; but surely that is not to be the result of the attempted removal in this case; and yet I see no other, if the case has been already removed to this court. We must, ex necessitate rei, resort to the law of the state upon the subject of process against infant defendants, or this case cannot progress beyond the point it was at the time of the attempted removal, and this resort can only be had by remanding it to the state court for that purpose. It has occurred to me that, inasmuch as the eighth section of the act of March 3, 1875, provides a snbstituted process by publication and notice to bring in absent defendants in certain exceptional cases where the suit is commenced in this court, we might apply it in this case, as it is of the character provided for, although it was not commenced but removed here, because the third section of the same ad says that after a case has been removed here it shall proceed in the same manner as if it had been originally commenced here. But, on mature reflection, I am satisfied this is not a sound construction of the statute, and produces unnecessary confusion in the practice. These provisions for substituted process are not favored, and are nowhere more strictly construed than by the federal courts; and it would be a stretch of judicial power to permit it in removed causes, when the act providing it in terms confines it to those commenced in the federal courts. Again, while this would remove the difficulty as
681
to process against infant defendants in removed causes falling within the very exceptional circumstances provided for in the eighth section of the act of congress, it would leave all the others where we were before, and we would have one practice for infant parties to removed causes for one class of cases and another for all others. This introduces confusion into the :practice, is an unsatisfactory and unnecessary result, and, in my judgment; not sustainable upon soundprinciples. It is the true rule to adopt a constructioti which covers all cases, &nd to require an infant defendant to be brought into the state' court by proper proceedings for that purpose before permitting allY removal in his behalf by anyone authorized to make it. Until that time there is, I think, technically or strictly speaking, no suit agairi'St him to be removed. .This remavalwas', if these views be 'correct, premature, and the cause should be remartded on that account. This would dispose of this motion without a consideration of the question, so much argued, as to the citizenship of Maud B. McKenna, the infant defendant, who cannot, it is urged, have a separate citizenship from her father, who is, confessedly, a citizen of Tennessee. If this be so we could take no jurisdiction on account of difference of citizenship between the plaintiff and defendant. But as we could On account of the subject-matter, I would pass this perplexing question without the expression of any opinion, but' for the fact that my judgment is not final, and it is proper that I should dispose of all the questions properly raised; and also it is proper, in view of any subseqnent proceedings for removal. As it is, I shall do no more than intimate my judgment on that' question, although I have given it a very careful consideration. I am satisfied that an infant child can acquire a separate citizenShip or domicile from that of its father, if not for all purposes of nationality and change of statu8 in its relations to the statutes of descents and distribution, certainly to the extent of acquiring a forum, broadly speaking, in the courts of the United States or of another state than that of which its father is a citizen. Or, as I may express it, for the purposes of judicial jurisdiction over the person, property, and tight to sue and be sued of an infant, it may have a different citizenship from that of its father. It can acquire this only by that emancipation by the father which relinquishes his parental control over the subjeot. On principle I do not see why, if a father may of his own volition and arbitrarily change a child's domicile in all that the term implies, except, perhaps, that of its nationality, by simply changing his own domicile, he' mfl,y not by 'other arbitrary acts do
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the same. When we come to consider how and by he may do this, the courts may, upon grounds of public policy and in the ahsence of legislation, see fit to confine the. father to the act of changing his own d,omicile; or, when they come to consider what acts shall be taken .as evidence, thflt the exercised his power of changing the child's domicile, they may decline to consider any other than that of a change of his own domicileliLs conclusive. We find, when jurists cous,ider the right: of a sllrviving mother or guardian to change any child's or «;loIllicile, they,. where, the right is conceded, qualify it by it to cases free from any fraudulent purpose, such as changing the order.of succession for their own benefit. The ,change will not. be permitted to do this, while it may be effectual for purposes. I do not, .with .the limited means at m;,. command, find any tract:! of this qualification having been applied ..to the right of a father ·to change hiscbild's domicile; but agliLin I see no reason why it. not be so. applied; whether we regard him as it by changing his own: or :by other means. This would meet the objtlctions urged against:the principle in argument, but reallyjt is a question 1J,ot of international law, as applicable to independent oountries, but rather of muni'Cipal regulations by the states, to be ,governed by considerations of the .peculiar comity that: comes of the. anoma.lous relations they; .bear to each other under our' system of government. Whether the principle I ha.ve indicated exists, so that it has received recognition in all countries, is a question I am Unable to answer; but it certainly does, or did, obtain in France. Whether it is recognized by the common law of England, or .is otherwise there established, se,E:jms: doubtful; though the right of emancipation so as the child's domicile in the matter of. parish settlements, .and the existence of that effect in all matters of. domicile operation of tllemarrlage of the infant, seems established.. It caQnot, then, in any view, be unqualifiedly said, as was _maintained in argument, that it: isa rule, without an exception, that a. father cannot change the domicile of his child without changing his own, or that a minor tlhildcannot acquire any different domicile from tha,tof its father. However .these .questions wquld ,have tp ,be ans'wered where there was an eutire absence of legislation, qr· in international tribunals. there can be no doubt that our s.tates., in their relation ,to ,eMh other, havecolltrol over the subject of emancipatiqn of minors parental control to the fullest extent, and that eaoh may prescribe thel'ulss to govern it and . limit or .extend,r itw ea;ects. Nothing was' mQrtJ
683
common, some years ago,than of the legislatures eman.: cipating minors from the disabilities of infancy, entirely or partially; and some states have general statutes on the subject. I have no doubt that,under our adoption laws in Tennessee, if a citizen of Kentucky should adopt the minor child of a citizen of Tennessee, that ipso ja<;to, and by necessary implication, the child would become a citizen of Kentucky by the ·consent of the state of Tennessee, and that Kentucky would recognize the' changed status of the child. Const. Tenn. art. 2. '§ 6; T. & S.Code (Tenn.) 3643-3645. So, if, under our Code,which saysuA father ... ... ... 1 may, by deed executed in his life-time, or by last will and testament in' writing fronitlme to time, and in such manner and form as he t.hinks fit, dispose of, the custody and tuition of any legitimate child under the age of 21 years and unmarried, '" ... ... during the minority of said child, or for a less T, & S. Code, § 2492.
-A deed or will should appoint a citizen of Kentucky such guardian, I ha"e no doubt it would operate totilake the child a citizen of Kentucky by necessary im:plication, whether it would or not for all purposes change the rule that the last-domicile of the father constitutes the domi<lile of the child. And, perhaps, there would be the same result if the county court should bind an abandoned child to a citizen of another state. T. & S. Code, § 2549. ' Why cannot a person have two domiciles-one for political citizenship, and anothertor purposes' of succession ?And, as I understand the subject, there is respectable authority that he may. The supreme court has held thf't, ex necessitate rei, a wife may acquire a different domicile from that' of the husband, and the same necessity may sometime exist, I should think, in the case of a child. Cheever v. Wilson, 9 Wall. 108. I am aware that our courts have decided that there is a distinction between residence, however long-continued, and citizenship, in the pUl'Viewof our constitution and laws, and that they apply substantially the same tests applied to determine questions of domicile in determining questions of citizenship; but I know of no case that holds that the:person must denude himself so entirely of his former domicile in one state that the laws of succession in the new state must attach to him in order to constituttl a change of citi;enship, and on the principles 'laid; down by the authorities I have consulted on the ,SUbject of two domiciles, I do not know why this most rigid test of domicile'should be insisted on. I should, of course, conas percede that the person 'can have only one domi'cile taining to his inter: state right'\)f' suing or being sued in the federal
I
684
FEDERAL REPORTER·
.courts; but it does not follow from this that when a conflict arises we. must apply the test of the right of succession in determining the conflict, nor that the domicile of succession must be inevitably the one that settles this suable citizenship, if I may so call it. Simple residence is the usual test of the place to sue a man; and while I do not depart from the established doctrine that citizenship is something more than residence, I am not prepared to hold· that it is nothing less than the domicile of succession. I do not overlook the fact urged in argument that the fourteenth amendment to the constitution has declared that "all persons born or naturalized in the United States ap.d subject to the jurisdiction they reside." Const. thereof are citizens of the United art·. 14. . But. I do ,not understand that thislf has enlarged the judiCial power of the United States under articl'e 3; .§2", so as to include oontroversies bl;ltween persons. who would be ·.citizens iof the same state, as theretofore understood, but w;ho a,re now residents of ent states, as contradistinguished from persons domiciled ill different the same wsts of citizenship now as beforB the amendmel).t. Robertson v.Cease, 97 U. 8.:646, 649; Nat. Bank v. T(!al, 5 FED" REP. 503, 505. I think these v,iews will :find support in the following authorities, and cited by them: 2 Kent, (12th note c, 225,226, note 1, (d,) 430, note. 1, 431,49, 11, 72; Dam. ReI. part 3, passim, pp. 312, 412, 452,M2, 393, 894; 314, 367, 372, 591, 0.98; Story,Col,lf. L. (5th Ed.) passim, §§ 39,49, '46, and note 4, §§: 531, 543, § 480, et, seq., 492 et seq.; Phil. Dom. passim, c. 3, c. 7; Westl. Priv, Int. L. §§.35,36, 37, 34, 316; L,' (2d Ed.) §§ 8, 10, 1Qa,c. 2, passim, §§ 24, Whart. 29, 41.,-43, 55-66, 67-77, 81, ,396,704, 720 ;.Bump, Fed. Proc. 130, Dill. Rem. (2d Ed.) 67:"fj.llll notes; Somerville v. Somerville, 5Ves. 750, (Perkin's .F;d.) and notes; Allen v. Z'lwmason 11 Humph. 535; Cloud v. Hamilton, ld. lOt; Ross v. Ross, 129 Ma,ss. 243; Tirrell v. Bacon, 3 FED. REP,62; Oollinsonv. Teal, 4 Sawy. 241; Holmes v. Railroad 00. 5 F,E];):·. 5,23, 526. And see 11 Cent. L. J. 421; 12 Cent. L, J. 51. Ido not treat this subject with a more ,exact and critical observation of the authorities, because, whilElI am inclined to think that an infant child may, at least to the extent of conferring the right to sue and be sued in the federal courts, with the consent of its father, acquire in the father's life-time such a dOlllicile in another state than that of the father's domicile as will make it a citizen of that state, I
f
j
WOOLRlDGE
v..
685
do not think, on the facts of this this defendant has acquired Buch a separa1ie citizenship from her father. I find not the trace of any principle upon which this result can be accomplished without the complete emancipation of the infant from the parental control of the father to that extent that there is conferred upon it the right to choose its own domicile, or upon Bome one else standing in loco parentis the right to choose one for it. The father can no more constitute a mere residl3nce of his child a citizenship, than he can make his own mere residence a citizenship, under the rules of law regulating this federal jurisdiction over citizens of different states. The domicile of the child must be changed, whether so completely as to alter its status for all purposes or not, certainly so completely 'that it no longer depends upon the volition of the father to again it. In TamwOrth V. New Market, 3 N. H. 472, it was held that p. child was not' einaneipated by a contract of the father that it shOUld reside with a stranger till it was 21 years of age. "He cannot by merely deposithig' his child in ,this or that 'state to itg domicile fot any purpose witHout changing his '.He mU,st, linguish and abandon his rights in that behalf to the child itself or another, or by operation of law the ;child'sdomicile wll1"shiftonly . with his 0Wll' affidavit here sho,ws oIl1yth",at 'he 'has.' placed his child to 'reside with..friends in Kentucky-permanently, ,he thinks, by, his own intention as it now exists, and that of the child and the friends with whom she resides, but non co'tiitat,that he may ,not change that intention, resume his parental control of his own volition, or that ,these friends may not compel him to resume it by send;. ing the .child back to him. He showsthat;he has not released his parental authority, because he appeals to: it W sustain his right to control this litigation, and Ms, supplemented it by applying fora guardianship of her property. I have no doubt that after eman(dpation he might be guardian or next friend, as any other might, 'a.nd natural father he must always be; but as long as he' exetciseshis legal control qua father, or has the right to do so, his 'Child'sdomicile must remain his own. I have no doubt, therefore, that' Maud B. McKenna is a citizen of Tennessee, and for that reaSon; as well as others; on the record as it now stands, this cause must be remanded. Remand the cause. ' ,
686
FEDEBAL REPORTER.
BAILEY 'V. AMERIOAN GENT. INS.
Co.
(Oircuit Oourt, D. IOwa. 1.
1881.)
JURISDICTION'OF THE CIRCUIT CoURT-REMOVAl. OF CAUSES-ACT OF 1875.
This court has jurisdiction, under the act of March 3, 1875, of a suit removed here from a state court on the petition of the defendant, where the suit was originally brought in the state court, appearance entered therein for the defendant at the first term,petition for removal presented, and the requisite bond tendered, without anY' other pleading being filed. :::. "CONTROVERSY "-PRESUMPTIONS.
Where nothing appears to the contrary, it will be presumed, from the fact that a suit has been commenced, that there is a "controversy" between the parties..
This is an actionti> recover damages upqn a policy of insurance, c,rid was originally instituted in the circuit court of Lee county, Iowa. defendant, a non-resident. corporation, in the state court at the first term after' the commenc.ement. of the suit, and, 'without filing any other pres(mted'its petition for a removal 'bf the cause to this court. th,e petition for removal the following statements appear: " ., ,
In
"Your petitioner, the defendant, would respectfully show the court that the matter arid amount in dispute in the abov&-entitled .cause exceeds, exclusive df costs, 'the sum of$500j that the controversy in: sajd suIt is between citizens of ditferent states j and' that the petitioner was,atthe commencement of,this suit,and still is, a citizen of the state of Missourij and that the said -}ioah Baileyw3st4ell, and still is, a citizen of lows."
Good and suffi.cient bOJ!ld being tendered, the state court sustained
the motion. iioremove the cause, and the record has acco:udingly been ,tiled in this court. The: plaintiff moves to remand, upon' the ground ,that, at the titne of tbeJiLingof the petition for the removal in the state court, there was no controversy between the parties. Hagerman, McOrary d Hagerman, for plaintiff. J Fulton tf Fulton, for deftlndant. MCCRARY, C. J. Thea-ct ·of congress of March 3, 1875, under -which this ,case was remQ\ted, provides for the remova.l of causes '''where, the matter ill dispute exceeds, exclusive of: costs, the sum or ,value oL$9:00, lit lit lit in which there shall be a controversy beof different states." It is insisted by the counsel for plaintiff that inasmuch as no answer or demurrer was filed in the state court, and no issue joined, we are bound to presume that there was no controversy in the case. That there must be a controversy in order to authorize the removal, is, of course, clear; and if it appears affirmatively from the record that there was no contI then the