1. The members of a foreign corporation, when it sues or is sued
in a court of the United States, are conclusively presumed to be
citizens or subjects of the state or country which created it.
2. The citizenship of the parties, if it be shown by the record,
need not be set out in the petition for the removal of a suit from
the state court to the circuit court of the United States.
3. Upon the filing of the requisite petition and bond in a suit
which is removable, the state court is absolutely divested of
jurisdiction of such suit, and its subsequent orders are
coram
non judice unless its jurisdiction be in some form actually
restored.
4. A failure to file the transcript within the time prescribed
by the statute does not restore that jurisdiction, and the circuit
court must determine whether, in the absence of a complete
transcript or when one has not been filed in proper time, it will
retain jurisdiction or dismiss the suit or remand it to the state
court.
5. A party having filed his petition and bond for the removal of
a suit pending in a state court, the court ruled that the suit was
not removable, but should there proceed. He subsequently consented
to an order requiring the issues to be heard and determined by a
referee, and thenceforward, until final judgment, contested the
case as well before the referee as in the courts of the state.
Held:
1. That the jurisdiction of the state court was not thereby
restored, and that his consent to the order of reference must be
construed as merely denoting a preference for that mode of
trial.
2. That his objection to the exercise of jurisdiction by the
referee and the state court, after he had filed his petition and
bond, added nothing to the legal strength of his position on the
question of removal.
This action was commenced on the 23d of June, 1875, by Tugman
against the National Steamship Company, which his complaint alleges
to be "a foreign corporation, having an office or general manager
and place of business in the City of New York." The summons and
complaint were served on the company's agent in New York on the
succeeding day.
Page 106 U. S. 119
On the 14th of July, 1875, the company entered its appearance,
and at the same time filed a petition and bond, in proper form, for
the removal of the action into the proper circuit court of the
United States. The petition alleges that the plaintiff, "at the
commencement of the action, was, and ever since has been, and now
is, a citizen of the State of Illinois;" that
"the petitioner is a corporation created and existing under and
by virtue of the laws of the United Kingdom of Great Britain and
Ireland, and has its principal offices for the transaction of its
business at Liverpool, in said kingdom,"
where, it is further alleged, the meetings of its stockholders
and directors were held, its records kept, its authorities acted,
and from which the latter issued their orders. The petition also
states that the company had not designated any person or persons
residing in any county of New York on whom process might be served,
as prescribed in the act of the legislature of that state of April
10, 1855.
The sufficiency of the bond was not questioned, but the motion
that the court proceed no further in the cause was, after argument
by counsel, overruled July 21, 1875.
The company filed its answer Aug. 3, 1875. On the 17th of
January, 1877, "on the consent of the parties," all the issues in
the action were, by order of court, referred to Henry Nicoll, "to
hear and determine the same." The parties appeared before the
referee, when the company -- presenting the petition, bonds, and
papers, upon which the removal of the action was theretofore asked
-- contended that the state court was ousted of jurisdiction, that
the referee had no power or authority to proceed therein, and that
the action was in fact removed into, and was then pending in, the
circuit court of the United States for the Eastern District of New
York. The objection was overruled by the referee, who ordered the
trial to proceed, to which decision and order the defendant's
attorney duly excepted. The trial proceeded notwithstanding the
company's objection.
On the 8th of June, 1877, the referee reported in favor of the
plaintiff for the sum of $4,324.53. Exceptions were filed by the
company, but they were overruled and judgment entered in accordance
with the report on the 27th of June, 1877.
Page 106 U. S. 120
The company appealed to the general term of the supreme court,
where the judgment was affirmed on the nineteenth day of February,
1878. Upon appeal to the Court of Appeals of the State, the
judgment of the supreme court was affirmed, the court saying:
"In regard to the question raised upon the trial that this court
was ousted of jurisdiction by the proceedings instituted to remove
the case into the United States circuit court, we think that the
petition was defective in not showing that the defendant was an
alien citizen or subject of a foreign power
at the time of the
commencement of the action, but only when the petition was
signed and sworn to. The omission referred to brings the case
directly within the decision in the case of
Pickner v. Phoenix
Insurance Co., 65 N.Y. 195. It may also be remarked that since
the order refusing to remove the case, the defendant consented to
the appointment of a referee to determine the case and submitted to
his jurisdiction by trying the action on the merits. It is at least
questionable whether he has not thus waived his right to insist
that a removal had been had."
The steamship company brought this writ of error.
MR. JUSTICE HARLAN delivered the opinion of the Court.
The underlying question in this case is whether, within the
meaning of the Constitution and of the statutes determining the
jurisdiction of the circuit courts of the United States and
regulating the removal of causes from state courts, a corporation
created by the laws of a foreign state may, for the purposes of
suing and being sued in the courts of the Union, be treated as a
"citizen" or "subject" of such foreign state.
In
Ohio & Mississippi
Railroad Co. v. Wheeler, 1 Black 286, the Court,
speaking by Chief Justice Taney, said that in the previous case of
Louisville, Cincinnati &
Charleston Railroad Co. v. Letson, 2 How. 497, it
had been decided upon full consideration
"that where a corporation is created by the laws of a state, the
legal presumption is that its members are citizens of the state in
which alone the corporate body has a legal
Page 106 U. S. 121
existence, and that a suit by or against a corporation in its
corporate name must be presumed to be a suit by or against citizens
of the state which created the corporate body, and that no averment
or evidence to the contrary is admissible for the purposes of
withdrawing the suit from the jurisdiction of a court of the United
States."
Marshall v. Baltimore &
Ohio Railroad Co., 16 How. 314;
Covington
Drawbridge Co. v. Shepherd, 20 How. 227;
Insurance Company v.
Ritchie, 5 Wall. 541;
Paul v.
Virginia, 8 Wall. 168;
Railroad
Company v. Harris, 12 Wall. 65.
To the rule thus established by numerous decisions the Court
adheres. Upon this branch of the case it is therefore only
necessary to say that if the individual members of a corporation
created by the laws of one of the United States are, for the
purposes of suit by or against it in the courts of the Union,
conclusively presumed to be citizens of the state by whose laws
that corporation is created and exists, it would seem to follow
logically that the members of a corporation created by the laws of
a foreign state should for like purposes be conclusively presumed
to be citizens or subjects of such foreign state. Consequently a
corporation of a foreign state is, for purposes of jurisdiction in
the courts of the United States, to be deemed constructively a
citizen or subject of such state.
But it is suggested that the petition for the removal of the
action into the circuit court of the United States is radically
defective in that it does not show that the National Steamship
Company was a corporation of a foreign state at the commencement of
the action; that the allegation upon that point refers only to the
time when the removal was sought. If, in suits in which the
jurisdiction of the courts of the United States depends upon the
character of the parties, it is material under the Act of March, 3,
1875, c. 137, to show what the citizenship of the parties was at
the commencement of the action, it is sufficient to say that the
averment in the original complaint that the company is a foreign
corporation, supplemented by the averment in the petition for
removal that it is a corporation created by and existing under the
laws of the United Kingdom of Great Britain and Ireland, covers the
whole period from the commencement of the action to the application
for removal.
Page 106 U. S. 122
It is not always necessary that the citizenship of the parties
be set out in the petition for removal. The requirements of the law
are met if the citizenship of the parties to the controversy sought
to be removed is shown affirmatively by the record of the case.
Railway Company v.
Ramsey, 22 Wall. 322;
Robertson v. Cease,
97 U. S. 646.
The only remaining question which need be considered is whether
the jurisdiction of the state court was in any form restored after
the company filed its petition and bond for removal. The defendant
in error insists that it was. The petition was accompanied by a
bond which, it is conceded, conformed to the statute and was ample
as to security. Upon the filing, therefore, of the petition and
bond, the suit being removable under the statute, the jurisdiction
of the state court absolutely ceased and that of the circuit court
of the United States immediately attached. The duty of the state
court was to proceed no further in the cause. Every order
thereafter made in that court was
coram non judice unless
its jurisdiction was actually restored. It could not be restored by
the mere failure of the company to file a transcript of the record
in the circuit court of the United States within the time
prescribed by the statute. The jurisdiction of the latter court
attached, in advance of the filing of the transcript, from the
moment it became the duty of the state court to accept the bond and
proceed no further, and whether the circuit court of the United
States should retain jurisdiction, or dismiss, or remand the action
because of the failure to file the necessary transcript was for it,
not the state court, to determine.
Nor was the jurisdiction of the state court restored when the
company subsequently consented to the order requiring the issues to
be heard and determined by a referee selected by the parties, or
when it appeared and contested the case, as well before the referee
as in the state courts, up to final judgment. The right of the
company to have a trial in the circuit court of the United States
became fixed upon the filing of the petition and bond. But the
inferior state court having ruled that the right of removal did not
exist, and that it had jurisdiction to proceed, the company was not
bound to desert the case, and leave the opposite party to take
judgment by default. It was
Page 106 U. S. 123
at liberty, its right to removal being ignored by the state
court, to make defense in that tribunal in every mode recognized by
the laws of the state without forfeiting or impairing in the
slightest degree its right to a trial in the court to which the
action had been transferred, or without affecting to any extent the
authority of the latter court to proceed. The consent by the
company to a trial by referee was nothing more than an expression
of its preference -- being compelled to make defense in the state
court -- for that one of the several modes of trial permitted by
the laws of the state. It is true that when the cause was taken up
by the referee, as well as when heard in the supreme court of the
state and in the Court of Appeals, the company protested that the
circuit court of the United States alone had jurisdiction after the
petition and bond for removal were filed. But no such protests were
necessary, and they added nothing whatever to the legal strength of
its position. When the state court adjudged that it had authority
to proceed, the company was entitled to regard the decision as
final so far as that tribunal was concerned, and was not bound, in
order to maintain the right of removal, to protest at subsequent
stages of the trial against its exercise of jurisdiction. Indeed,
such a course would scarcely have been respectful to the state
court after its ruling upon the point of jurisdiction had been
made.
What we have said upon this subject is fully sustained by our
former decisions, particularly
Railroad Company v. Koontz,
104 U. S. 5;
Railroad Company v. Mississippi, 102 U.
S. 135;
Kern v. Huidekoper, 103 U.
S. 485, and
Insurance Company v.
Dunn, 19 Wall. 214.
The judgments herein of the Court of Appeals of New York and of
the Supreme Court of New York are reversed, and the cause is
remanded with directions that the latter court accept the bond
tendered by plaintiff in error for the removal of the cause to the
Circuit Court of the United States for the Eastern District of that
state, and proceed no further in the cause, and it is
So ordered.
