57 How. Pr. 175 | U.S. Cir. Ct. | 1879
This is an action at law commenced in the marine court of the city of Hew York on the 28th of February, 1879, by the personal service on the- defendant of a summons and complaint. It is a suit to recover $804.11, with interest, on a promissory note made by the defendant. On the 11th of March, 1879, the defendant presented a petition to the marine court for the removal of the cause into this court, accompanied by a proper bond. The petition sets forth that the plaintiff was, at the time of bringing the suit, a citizen of the city of Washington in the District of Columbia, and that the defendant was at the said time an alien and a subject of the queen of Great Britain. The marine court made an order removing the cause into this court. The papers from the state court have been filed in this court, and the plaintiff now moves to remand the cause to the state court, on the ground that this court has no jurisdiction to entertain it.
The Constitution of the United States {a/rt. 3, see. 2) provides that the judicial power of the United States shall extend to controversies between the citizens of a state and foreign citizens or subjects. This is the only grant of jurisdiction over cases to which foreign citizens or subjects are parties. The distinction between the District of Columbia and a state is clearly recognized in article 1, section 8 of the Constitution. The ground taken by the plaintiff is, that he is not a citizen of a state, being only a citizen of the District of Columbia. The eleventh section of the judiciary act of September 24, 1789 (1 U. S. Statutes at Large, 78), gave original
The plaintiff is alleged to be a citizen of the District of Columbia. He -is not alleged to be a citizen of any state. As a citizen of -the District of Columbia, is the plaintiff a citizen of a state ?
In Hepburn agt. Ellsey (2 Cranch, 445) in 1804, it was held that a circuit court has no jurisdiction of a suit between a citizen of the District of Columbia and a.citizen of a state, because a citizen of the District of Columbia was not a citizen of a state. The question arose under that clause of section 11 of the act of 1789, which gave original jurisdiction to the court of a suit “ between a citizen of the state where the suit is brought and a citizen of another state.” This ruling was followed in Wescott agt. Fairfield (Peter's C. C. R. 45) in 1811.
In New Orleans agt. Winter (1 Wheaton, 91), in 1816, the supreme court held that the circuit court had no jurisdiction of a suit between a citizen of a territory and a citizen of a
The defendant refers to section 1891 of the Bevised Statutes as making the plaintiff a citizen of a state. That section reads thus: “ The Constitution and all laws of the United States which are not locally inapplicable shall have the same force and effect within all the organized territories, and in every territory hereafter organized, as elsewhere within the United States.” * It is a compilation of the provisions found in eight statutes in regard to eight different territories, which statutes are referred to in the margin of the section. The provisions were substantially alike, and are found in the statutes organizing the several territories from 1850 to 1868. One is a specimen of all. The latest, Wyoming, in 1868, reads thus: “ The Constitution and all laws of the United States which are not locally inapplicable shall have the same force and effect within the said territory of Wyoming as elsewhere within the United States.” It is sufficient to say that these enactments have no reference to the District of Columbia
As it appears within section 5 of the act of 1875 that this suit does not involve a controversy within the jurisdiction of this court, an order will be entered to that effect, and that this court will proceed no further therein; and that this suit be remanded to the marine court of the city of ISTew York, and that the defendants pay to the plaintiff, his costs in this court, to be taxed.
Hote. — Before making the above application in the United States court, the plaintiff applied in the state court to vacate the expa/rte order for the transfer upon the ground it was improvidently made, and the following opinion was filed thereon :
The record in this action has been removed to, and filed in, the United States circuit court on the usual petition and bond. Any order I might now make in the premises would be coram non judice (see Dillon on Removal of Causes, p. 67, note; Kanouse agt. Martin, 15 How. [U. S.], 198 ; Insurance Co. agt. Dunn, 19 Wall., 214 ;Livermore agt. Jenks, 4 How. Pr., 479 ; Mahone agt. Manchester R. R. Co., 111 Mass., 72; Stevens agt. Phoenix Ins. Co., 41 N. Y., 149); for, as judge Allen (in Bell agt. Dix, 49 N. Y., at p. 237), says : “ It is a novel proceeding for a suitor to apply to a court from which the record and cause have been removed for relief which the court having jurisdiction can only effectually grant.” Having no jurisdiction, it would be unbecoming to say one word upon "the merits of the application either pro or con, although I have fixed impressions in regard to the matter. If the United States court determines to remand the record to this court, the order will be respected and ■enforced. [Ed.