203 U.S. 449
Ex parte ABRAM C. WISNER.
Nos. 9, 10, Original.
Submitted May 14, 1906.
Decided December 10, 1906.
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 [203 U.S. 449, 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:
The motion was heard and denied April 2, 1906, the circuit court referring to Foulk v. Gray, 120 Fed. 156, and Rome Petroleum & Iron Co. v. Hughes Specialty Well Drilling Co. 130 Fed. 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.
Messrs. J. J. Darlington, James C. Jones, H. S. Mecartney, G. G. B. Drummond, Oliver & Mecartney, and Jones, Jones, & Hocker for petitioner.
Mr. Chief Justice Fuller delivered the opinion of the court:
By article 3 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, 3 L. ed. 259); but the jurisdiction of the circuit courts depends upon some act of Congress ( Turner v. Bank of North America, 4 Dall. 8, 10, 1 L. ed. 718, 719; McIntire v. Wood, 7 Cranch, 504, 506, 3 L. ed. 420, 421; Sheldon v. Sill, 8 How. 441, 448, 12 L. ed. 1147, 1150; Stevenson v. Fain, 195 U.S. 165, 167 , 49 S. L. ed. 142, 143, 25 Sup. Ct. Rep. 6). 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 1st section of the act of March 3, 1887 (24 Stat. at L. 552, chap. 373), as corrected by the act of August 13, 1888 (25 Stat. at L. 433, chap. 866), [203 U.S. 449, 456] amended 1, 2, and 3 of the act of Congress of March 3, 1875 (18 Stat. at L. 470, chap. 137, U. S. Comp. Stat. 1901, p. 508), as follows:
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 2 unless it be one that plaintiff could have brought originally in the circuit court. Tennessee v. Union & Planters' Bank, 152 U.S. 454 , 38 L. ed. 511, 14 Sup. Ct. Rep. 654; Mexican Nat. R. Co. v. Davidson, 157 U.S. 208 , 39 L. ed. 675, 15 Sup. Ct. Rep. 563; Cochran v. Montgomery County, 199 U.S. 272 , 50 L. ed. 188, 26 Sup. Ct. Rep. 58. [203 U.S. 449, 458] In Shaw v. Quincy Min. Co. (Ex parte Shaw) 145 U.S. 444, 446 , 36 S. L. ed. 768, 770, 12 Sup. Ct. Rep. 935, 936, 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:
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. at L. 272, chap. 27), 1, and the act of March 3, 1875 (18 Stat. at L. 470, chap. 137, U. S. Comp. Stat. 1901, p. 508), 1, Mr. Justice Gray thus continued:
In short, the acts of 1887, 1888 restored the rule of 1789, as we stated in Cochran v. Montgomery County, supra. [203 U.S. 449, 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, 25 , 46 S. L. ed. 413, 416, 22 Sup. Ct. Rep. 293. In Central Trust Co. v. McGeorge, 151 U.S. 129 , 38 L. ed. 98, 14 Sup. Ct. Rep. 286, 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 Sav. & L. Asso. 191 U.S. 78, 82 , 48 S. L. ed. 103, 105, 24 Sup. Ct. Rep. 30, 32: 'A petition and bond for removal are in the nature of process. They [203 U.S. 449, 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 & S. F. R. Co. v. McBride, 141 U.S. 127 , 35 L. ed. 659, 11 Sup. Ct. Rep. 982, 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.
[ Footnote 1 ] U. S. Comp. St. 1901, p. 508.