Under § 5 a the Judiciary Act of March 3, 1891, the question of
jurisdiction to be certified is the jurisdiction of the circuit
court as a court of the United States, and not in respect of its
general authority as a judicial tribunal.
The certificate of the lower court is an absolute prerequisite
to the exercise of power here unless the record clearly and
unequivocally shows that the court sends up for consideration the
single and definite question of its jurisdiction as a court of the
United States.
When a case has been removed into the circuit court of the
United States on the ground of diversity of citizenship, that court
is entitled to pass on all questions arising, including the
question of jurisdiction over the subject matter in the state
courts or the sufficiency of mesne process to authorize the
recovery of personal judgment.
The right to remove for diversity of citizenship, as given by a
constitutional act of Congress, cannot be taken away or abridged by
state statutes, and, the case being removed, the circuit court has
power to so deal with the controversy that the party will lose
nothing by his choice of tribunals.
Merrit B. Atwater, a citizen of Wisconsin, and William C.
Atwater, a citizen of Illinois, were partners, and in 1898 Merrit
B. died testate, having appointed Louis A. Pradt, likewise a
citizen of Wisconsin, his executor. The will was duly admitted to
probate in Wisconsin, and Pradt duly qualified as executor, and has
been and is acting as such. William C. Atwater was one of the
legatees under the will.
The Atwater Land & Lumber Company was a corporation of
Wisconsin, engaged in buying, owning, holding, and selling real
estate in Kentucky, and Merrit B. Atwater at the time of his death,
owned stock in that corporation, on which a dividend was declared
August 30, 1901, which amounted to $4,757.37. W. C. Atwater was not
a stockholder at the time of the declaration of the dividend, and
had not been since 1893.
Page 196 U. S. 90
Courtney, a citizen of Kentucky, brought suit in the Circuit
Court of Powell County, Kentucky, against Pradt, executor, and
William C. Atwater, and procured a general order of attachment,
under which the sheriff summoned the company to answer as garnishee
by delivery of a copy of the attachment to the person designated by
the company as its agent upon whom process could be executed, as
required by the statutes of Kentucky in that behalf. There was no
personal service on Pradt, executor, or on William C. Atwater, but
a warning order was entered pursuant to statute.
Pradt, as executor, and William C. Atwater, filed their petition
and bond in the state court for the removal of the cause to the
Circuit Court of the United States for the Eastern District of
Kentucky on the ground of diversity of citizenship, and it was
removed accordingly. Pradt, executor, and William C. Atwater,
entering their appearance in the circuit court for that purpose
only, moved the court to dismiss the case "for want of jurisdiction
to try same." On the same day, Pradt, executor, filed a special
demurrer, assigning as causes,
inter alia, that the court
had no jurisdiction of the person or of the subject matter. And on
that day, plaintiff moved to remand, no reasons being given. The
circuit court overruled the motion to remand, sustained the motion
to dismiss and the demurrer, and entered judgment dismissing the
suit for want of jurisdiction. Two opinions were delivered, because
further argument was permitted, and both are in the record. No
certificate of the question of jurisdiction was applied for or
granted, but an appeal was allowed to this Court, which was argued
in due course, together with a motion to dismiss.
Page 196 U. S. 91
MR. CHIEF JUSTICE Fuller delivered the opinion of the Court.
It appears from the opinions of the circuit court, to which we
properly may refer,
Loeb v. Trustees, 179 U.
S. 472, that the court held that the state court had no
jurisdiction so far as William C. Atwater was concerned unless it
had jurisdiction as against the foreign executor of his deceased
partner, that the suit must be treated as if against the foreign
executor alone, and that it could not be maintained against the
foreign executor in the state court, nor in the federal court. And
further, that the court was not bound to remand the case that the
state court might determine that question.
The appeal was taken directly to this Court, and cannot be
maintained unless the case comes within the first of the classes
named in section 5 of the Judiciary Act of March 3, 1891, which
gives an appeal or writ of error direct
"in any case in which the jurisdiction of the court is in issue;
in such cases the question of jurisdiction alone shall be certified
to the Supreme court from the court below for decision."
It is settled that the question of jurisdiction thus to be
certified is the jurisdiction of the circuit court as a court of
the United States, and not in respect of its general authority as a
judicial tribunal.
Blythe v. Hinckley, 173 U.
S. 501;
Mexican Central Railway Company v.
Eckman, 187 U. S. 429;
Louisville Trust Company v. Knott, 191 U.
S. 225.
And the general rule is that the certificate is an absolute
prerequisite to the exercise of jurisdiction here.
Maynard v.
Hecht, 151 U. S. 324.
Although we have recognized exceptions to this rule when the
explicit terms of the decree, or even of the order allowing the
appeal, might properly be considered as equivalent to the formal
certificate.
Huntington v. Laidley, 176 U.
S. 668;
Arkansas v. Schlierholz, 179 U.
S. 598.
But, as said by Mr. Justice Gray in
Huntington v.
Laidley,
Page 196 U. S. 92
"the record must distinctly and unequivocally show that the
court below sends up for consideration a single and definite
question of jurisdiction" -- that is, of the jurisdiction of the
court as a court of the United States.
No such state of case is exhibited by this record. There is no
certificate nor any equivalent therefor. No single and definite
issue as to the jurisdiction of the circuit court as a federal
court is presented.
The case was dismissed for want of jurisdiction over it, as a
suit against a foreign executor, in the courts of Kentucky. The
court had power to so adjudicate. When a case has been removed into
the circuit court on the ground of diversity of citizenship, that
court is entitled to pass on all questions arising, including the
question of jurisdiction over the subject matter in the state
courts or the sufficiency of the service of mesne process to
authorize the recovery of personal judgment.
Goldey v. Morning
News, 156 U. S. 518;
Wabash Western Railway Company v. Brow, 164 U.
S. 271;
De Lima v. Bidwell, 182 U. S.
1;
Conley v. Mathieson Alkali Works,
190 U. S. 406. It
is true that, in this case, a motion to remand was made, but there
was nothing to indicate that it rested on the contention that there
was a lack of jurisdiction in the federal courts, as
contradistinguished from the state courts. It did not in terms put
in issue the power of the circuit court as a court of the United
States to hear and determine the case, and we cannot be called on
to say that there may not have been other grounds for the motion,
or to attempt to eliminate every other ground for the purpose of
bringing the case within the first clause of section five.
We do not regard the objection now urged, that the suit was in
equity, and, as such, not cognizable by the circuit court, as open
to consideration on this record by direct appeal, but, if it were,
it is unavailing on the question of power.
The principal action was an action at law. If, under existing
statutes of Kentucky, the process of attachment or garnishment
against nonresidents was equitable in form, as is contended,
Page 196 U. S. 93
this could not cut off the right of removal where diversity of
citizenship existed. The right to remove given by a constitutional
act of Congress cannot be taken away or abridged by state statutes,
and, the case being removed, the circuit court had power to so deal
with the controversy that the party could lose nothing by his
choice of tribunals.
Cowley v. Northern Pacific Railroad
Company, 159 U. S. 569. In
our opinion, the appeal was improvidently prosecuted directly to
this Court, and it must therefore be
Dismissed.
