The Supreme Court of the United States alone possesses
jurisdiction derived immediately from the Constitution and of which
the legislative power cannot deprive it; that of the circuit courts
depend on some act of Congress.
No suit which could not have been originally brought in the
circuit court of the United States can be removed therein from the
state court.
Under §§ 1, 2, 3, of the Act of March 3, 1875, 18 Stat. 470, as
amended by the Act of March 1, 1887, 24 Stat. 552, corrected by the
Act of August 13, 1888, 25 Stat. 433, an action commenced in a
state court by a citizen of another state against a nonresident
defendant who is a citizen of a state other than that of the
plaintiff cannot be removed by the defendant into the circuit court
of the United States.
Where the circuit court refuse to remand to the state court a
case removed to it, but over which it has no jurisdiction, mandamus
from this Court is the proper remedy, and not prohibition.
Abram C. Wisner, a citizen of the State of Michigan, commenced
an action at law on February 17, A.D. 1906, in the Circuit Court in
and for the City of St. Louis and State of Missouri against John D.
Beardsley, a citizen of the State of Louisiana, by filing a
petition, together with an affidavit on which that court issued a
writ of attachment, in the usual form, directed to the Sheriff of
St. Louis. The sheriff returned no property found, but that he had
garnisheed the Mississippi Valley Trust Company, a corporation of
Missouri, and also had served Beardsley with summons in the City of
St. Louis.
Saturday, March 17, A.D. 1906, the garnishee answered, and on
the same day Beardsley filed his petition to remove the action from
the state court into the Circuit Court of the United States for the
Eastern Division of the Eastern District of Missouri, on the ground
of diversity of citizenship, together
Page 203 U. S. 450
with the bond required in such case. An order of removal was
thereupon entered by the state court, and the transcript of record
was filed in the circuit court of the United States.
Monday, March 19, Wisner moved to remand in these words:
"Now at this day comes plaintiff, by his attorneys, Jones, Jones
& Hocker, and appearing specially for the purposes of this
motion only, saving and reserving any and all objections which he
has to the manifold imperfections in the mode, manner, and method
of the removal papers, and expressly denying that this court has
jurisdiction of this cause, or of the plaintiff therein,
respectfully moves the court to remand this cause to the Circuit
Court of the City of St. Louis, from whence it was removed, for the
reason that this suit does not involve a controversy or dispute
properly within the jurisdiction of this court, and that it appears
upon the face of the record herein that the plaintiff is a citizen
and resident of the State of Michigan and the defendant a citizen
and resident of the State of Louisiana, and the cause is not one
within the original jurisdiction of this court; hence this court
cannot acquire jurisdiction by removal."
The motion was heard and denied April 2, 1906, the circuit court
referring to
Foulk v. Gray, 120 F. 156, and
Rome
Petroleum Company v. Hughes, 130 F. 585, as representing the
different views of the courts below on the question involved.
On April 23, Wisner applied to this Court for leave to file a
petition for mandamus as well as a petition for prohibition; leave
was granted, and rules entered, returnable May 14, 1906, and the
cases submitted on the returns to the rules.
Page 203 U. S. 455
MR. CHIEF JUSTICE FULLER delivered the opinion of the Court.
By Article III of the Constitution, the judicial power of the
United States was "vested in one Supreme Court, and in such
inferior courts as the Congress may, from time to time, ordain and
establish."
And the judicial power was extended
"to all cases, in law and equity, arising under this
Constitution, the laws of the United States, and treaties made, or
which shall be made, under their authority; to all cases affecting
ambassadors, other public ministers, and consuls; to all cases of
admiralty and maritime jurisdiction; to controversies to which the
United States shall be a party; to controversies between two or
more states; between a state and citizens of another state; between
citizens of different states; between citizens of the same state
claiming lands under grants of different states, and between a
state or the citizens thereof, and foreign states, citizens, or
subjects."
The Supreme Court alone possesses jurisdiction derived
immediately from the Constitution, and of which the legislative
power cannot deprive it,
United States v.
Hudson, 7 Cranch 32, but the jurisdiction of the
circuit courts depends upon some act of Congress.
Turner v.
Bank, 4 Dall. 8,
4
U. S. 10;
McIntire v.
Wood, 7 Cranch 504,
11 U. S. 506;
Sheldon v.
Sill, 8 How. 441,
49 U. S. 448;
Stevenson v. Fain, 195 U. S. 165,
195 U. S. 167.
In the latter case, we said:
"The use of the word 'controversies' as in contradistinction to
the word 'cases,' and the omission of the word 'all' in respect of
controversies, left it to Congress to define the controversies over
which the courts it was empowered to ordain and establish might
exercise jurisdiction, and the manner in which it was to be
done."
The first section of the Act of March 3, 1887, 24 Stat. 552, c.
373, as corrected by the Act of August 13, 1888, 25 Stat. 433,
Page 203 U. S. 456
c. 366, amended sections 1, 2, and 3 of the Act of Congress of
March 3, 1875, 18 Stat. 470, c. 137, p. 470, as follows:
"That the circuit courts of the United States shall have
original cognizance, concurrent with the courts of the several
states, of all suits of a civil nature at common law or in equity,
where the matter in dispute exceeds, exclusive of interest and
costs, the sum or value of two thousand dollars, and arising under
the Constitution or laws of the United States, or treaties made, or
which shall be made, under their authority, or in which controversy
the United States are plaintiffs or petitioners, or in which there
shall be a controversy between citizens of different states, in
which the matter in dispute exceeds, exclusive of interest and
costs, the sum or value aforesaid; . . . But no person shall be
arrested in one district for trial in another in any civil action
before a circuit or district court, and no civil suit shall be
brought before either of said courts against any person by any
original process or proceeding in any other district than that
whereof he is an inhabitant; but where the jurisdiction is founded
only on the fact that the action is between citizens of different
states, suit shall be brought only in the district of the residence
of either the plaintiff or the defendant. . . ."
"SEC. 2. That any suit of a civil nature at law or in equity,
arising under the Constitution or laws of the United States, or
treaties made, or which shall be made, under their authority, of
which the circuit courts of the United States are given original
jurisdiction by the preceding section, which may now be pending, or
which may hereafter be brought, in any state court, may be removed
by the defendant or defendants therein to the circuit court of the
United States for the proper district. Any other suit of a civil
nature at law or in equity, of which the circuit courts of the
United States are given jurisdiction by the preceding section and
which are now pending, or which may hereafter be brought, in any
state court, may be removed into the circuit court of the United
States for the proper district by the defendant
Page 203 U. S. 457
or defendants therein, being nonresidents of that state. And
when, in any suit mentioned in this section, there shall be a
controversy which is wholly between citizens of different states,
and which can be fully determined as between them, then either one
or more of the defendants actually interested in such controversy
may remove said suit into the circuit court of the United States
for the proper district. And where a suit is now pending, or may be
hereafter brought, in any state court in which there is a
controversy between a citizen of the state in which the suit is
brought and a citizen of another state, any defendant, being such
citizen of another state, may remove such suit into the circuit
court of the United States for the proper district at any time
before the trial thereof when it shall be made to appear to said
circuit court that, from prejudice or local influence, he will not
be able to obtain justice in such state court. . . ."
"Whenever any cause shall be removed from any state court into
any circuit court of the United States, and the circuit court shall
decide that the cause was improperly removed, and order the same to
be remanded to the state court from whence it came, such remand
shall be immediately carried into execution, and no appeal or writ
of error from the decision of the circuit court so remanding such
cause shall be allowed."
Section 3, as amended, provided for petition and bond for "the
removal of such suit into the circuit court to be held in the
district where such suit is pending."
As it is the nonresident defendant alone who is authorized to
remove, the circuit court for the proper district is evidently the
circuit court of the district of the residence of the
plaintiff.
And it is settled that no suit is removable under section 2
unless it be one that plaintiff could have brought originally in
the circuit court.
Tennessee v. Bank, 152 U.
S. 454;
Mexican National Railroad v. Davidson,
157 U. S. 208;
Cochran v. Montgomery County, 199 U.
S. 260,
199 U. S.
272.
Page 203 U. S. 458
In
Shaw v. Quincy Mining Company, 145 U.
S. 444,
145 U. S. 446,
Mr. Justice Gray, speaking for the Court, in disposing of the
question whether, under § 1,
"a corporation incorporated in one State of the Union, and
having a usual place of business in another state in which it has
not been incorporated, may be sued in a circuit court of the United
States held in the latter state, by a citizen of a different
state,"
said:
"This question, upon which there has been a diversity of opinion
in the circuit courts, can be best determined by a review of the
acts of Congress, and of the decisions of this Court, regarding the
original jurisdiction of the circuit courts of the United States
over suits between citizens of different states."
"In carrying out the provision of the Constitution which
declares that the judicial power of the United States shall extend
to controversies 'between citizens of different states,' Congress,
by the Judiciary Act of September 24, 1789, c. 20, section 11,
conferred jurisdiction on the circuit court of suits of a civil
nature at common law or in equity, 'between a citizen of the state
where the suit is brought and a citizen of another state,' and
provided that 'no civil suit shall be brought against an inhabitant
of the United States in any other district than that whereof he is
an inhabitant, or in which he shall be found at the time of serving
the writ.' 1 Stat. 78, 79."
And, after observations in relation to the use of the word
"inhabitant" in that act, and referring to the Act of May 4, 1858,
11 Stat. 272, c. 27, § 1, and the Act of March 3, 1875, 18 Stat.
470, c. 137, § 1, Mr. Justice Gray thus continued:
"The act of 1887, both in its original form and as corrected in
1888, reenacts the rule that no civil suit shall be brought against
any person in any other district than that whereof he is an
inhabitant, but omits the clause allowing a defendant to be sued in
the district where he is found, and adds this clause:"
"But where the jurisdiction [of either] is founded only on the
fact that the action is between citizens of different states, suit
shall be brought only in the district of the residence of
Page 203 U. S. 459
either the plaintiff or the defendant."
"24 Stat. 552, c. 373; 25 Stat. 434, c. 866. As has been
adjudged by this Court, the last clause is by way of proviso to the
next preceding clause, which forbids any suit to be brought in any
other district than that, whereof the defendant is an inhabitant,
and the effect is that"
"where the jurisdiction is founded upon any of the causes
mentioned in this section, except the citizenship of the parties,
it must be brought in the district of which the defendant is an
inhabitant; but where the jurisdiction is founded solely upon the
fact that the parties are citizens of different states, the suit
may be brought in the district in which either the plaintiff or the
defendant resides."
"
McCormick Harvesting Co. v. Walthers, 134 U. S.
41,
134 U. S. 43. And the general
object of this act, as appears upon its face and as has been often
declared by this Court, is to contract, not to enlarge, the
jurisdiction of the circuit courts of the United States.
Smith
v. Lyon, 133 U. S. 315,
133 U. S.
320;
In re Pennsylvania Co., 137 U. S.
451,
137 U. S. 454;
Fisk v.
Henarie, 142 U. S. 459,
142 U. S.
467."
"As to natural persons, therefore, it cannot be doubted that the
effect of this act, read in the light of earlier acts upon the same
subject and of the judicial construction thereof, is that the
phrase 'district of the residence of' a person is equivalent to
'district whereof he is an inhabitant,' and cannot be construed as
giving jurisdiction, by reason of citizenship, to a circuit court
held in a State of which neither party is a citizen, but, on the
contrary, restricts the jurisdiction to the district in which one
of the parties resides, within the state of which he is a citizen,
and that this act therefore having taken away the alternative,
permitted in the earlier acts, of suing a person in the district
'in which he shall be found,' requires any suit, the jurisdiction
of which is founded only on its being between citizens of different
states, to be brought in the state of which one is a citizen, and
in the district therein of which he is an inhabitant and
resident."
In short, the acts of 1887, 1888 restored the rule of 1789, as
we stated in
Cochran v. Montgomery County, supra.
Page 203 U. S. 460
In the present case, neither of the parties was a citizen of the
State of Missouri, in which state the suit was brought, and
therefore it could not have been brought in the circuit court in
the first instance.
Wisner did not, of choice, select the state court as the forum,
since he could not have sued in the circuit court under the act,
because neither he nor Beardsley was a citizen of Missouri. And the
question of jurisdiction relates to the time of commencing the
suit.
But it is contended that Beardsley was entitled to remove the
case to the circuit court, and as, by his petition for removal, he
waived the objection so far as he was personally concerned that he
was not sued in his district, hence that the circuit court obtained
jurisdiction over the suit. This does not follow, inasmuch as, in
view of the intention of Congress by the act of 1887 to contract
the jurisdiction of the circuit courts, and of the limitations
imposed thereby, jurisdiction of the suit could not have obtained,
even with the consent of both parties. As we have heretofore
remarked:
"Jurisdiction as to the subject matter may be limited in various
ways as to civil and criminal cases; cases at common law or in
equity or in admiralty; probate cases, or cases under special
statutes; to particular classes of persons; to proceedings in
particular modes, and so on."
Louisville Trust Co. v. Comingor, 184 U. S.
18,
184 U. S. 25. In
Central Trust Company v. McGeorge, 151 U.
S. 129, it was assumed, however, that the requirement
that no suit should be brought in any other district than that of
the plaintiff or of the defendant might be waived where neither
resided therein, because, in that case, the nonresident plaintiff
had sued in the circuit court and the nonresident defendant had
answered on the merits, which showed the consent of both parties,
and not unnaturally led to the result announced, while in this
case, there was no such consent. As was stated by MR. JUSTICE
BREWER in
Kinney v. Columbia Savings and Loan Association,
191 U. S. 78,
191 U. S.
82:
"A petition and bond for removal are in the nature of process.
They
Page 203 U. S. 461
constitute the process by which the case is transferred from the
state to the federal court."
When, then, Beardsley filed his petition for removal, he sought
affirmative relief in another district than his own. But plaintiff,
in resisting the application and moving to remand, denied the
jurisdiction of the circuit court. In
St. Louis &c. Ry. Co.
v. McBride, 141 U. S. 127,
where the plaintiffs were citizens and residents of the Western
District of Arkansas, and commenced their action in the circuit
court of the United States for the district, and the defendant was
a corporation and citizen of the State of Missouri, it was held
that, as the defendant appeared and pleaded to the merits, he
thereby waived his right to challenge thereafter the jurisdiction
of the court over him on the ground that the suit had been brought
in the wrong district. And there are many other cases to the same
effect.
Our conclusion is that the case should have been remanded; and,
as the circuit court had no jurisdiction to proceed, that mandamus
is the proper remedy.
Mandamus awarded; petition for prohibition dismissed.
MR. JUSTICE BREWER concurred in the result.