116 F. 471 | 9th Cir. | 1902
This suit was commenced in a state court of Washington, from which, on the petition of the appellant, it was transferred to the circuit court of the United States for the district of Washington, in which court it was tried on its merits, and a decree entered therein, from which decree the German Savings & Loan Society took and was allowed an appeal. Upon the calling of the case for argument in this court, counsel for the appellant announced that they had just discovered that the suit was improperly removed from the state court, and that the circuit court had not, nor has this court, any jurisdiction over it, for the reason that the case presented no separable controversy, nor did such diverse citizenship exist as would confer jurisdiction upon the federal court. As the case
“Tlie case having been removed to the circuit court upon petition of defendant, it does not lie in its mouth to claim that such court has no jurisdiction of the case, unless the court from which it was removed had no jurisdiction.”
This language must be read in connection with the facts of the case about which the court was speaking. It is never permissible to select certain sentences or paragraphs of an opinion, detach them from their context, and give them universal application. In the case of Railroad Co. v. Swan, 111 U. S. 379, 4 Sup. Ct. 510, 28 L. Ed. 462, and in other cases there cited, the supreme court declared the rule to be inflexible and without exception that the judicial power of the United States cannot be exerted in a case to which it does not extend, even if both parties desire it to be exerted; and that the court “must, of its own motion, deny its own jurisdiction, and, in the exercise of its appellate power, that of all other courts of the United States, in all cases where such jurisdiction does not affirmatively appear in the record on which, in the exercise of that power, it is called to act. On every writ of error or appeal the first and fundamental question is that of jurisdiction, first, of this court, and then of the court from which the record comes. This question the court is bound to ask and answer for itself, even when not otherwise suggested, and without respect to the relation of the parties to it.” See, also, Craswell v. Belanger, 6 C. C. A. 1, 56 Fed. 529, and numerous cases there cited. We do not think that the supreme court had any intention of changing this long and well-established rule by the concluding clause of its opinion in the case of Cowley v. Northern Pacific Railroad Company, above quoted.
There are, therefore, but two questions for consideration on this motion; that is to say, whether the requisite diverse citizenship or the requisite separable controversy existed to confer jurisdiction on the United States circuit court. And, in respect to the first, the .law is that the difference of citizenship, on which the right of removal depends, must have existed at the time when the suit was begun, as well as at the time of removal. Gibson v. Bruce, 108 U. S. 561, 2 Sup. Ct. 873, 27 L. Ed. 825; Railroad Co. v. Swan, supra. In neither the complaint filed in the state court nor in the petition presented by the German Savings & Roan Society for its removal to the federal court did it appear of what state were the plaintiffs Dora May Dormitzer or William R. Tull citizens, and as, according to the uniform decisions of the federal courts upon this point, the jurisdiction of the circuit court fails unless the necessary citizenship is made to appear, the presumption is necessarily against it. Grace v. Insurance Co., 109 U. S. 278, 283, 3 Sup. Ct. 207, 27 L. Ed. 932; Robertson v. Cease, 97 U. S. 646, 24 L. Ed. 1057; Railroad Co. v. Swan, and Craswell v. Belanger, supra. It is true that, prior to the filing
The contention on the part of the appellees that the defendants-Francis M. Tull and Ernest B. Tull were nominal defendants only cannot be sustained, for the reason hereinafter stated. Jurisdiction, in the circuit court over the suit cannot, therefore, be sustained on the ground of diverse citizenship of the parties, and, as a matter of fact, the removal was not sought on that ground. The petition proceeded upon the ground that there was a separable controversy, but an examination of the complaint very clearly shows that there was-nothing of the kind in the case. In order to justify a removal on the ground of a separate controversy between citizens of different states, said the supreme court in Torrence v. Shedd, 144 U. S. 530, 12 Sup. Ct. 727, 36 L. Ed. 528, “there must, by the very terms of the statute, be a controversy ‘which can be fully determined as between them’; and by the settled construction of this section, the whole subject-matter of the statute must be capable of being finally determined as between them, and complete relief afforded as to the separate cause of action, without the presence of others originally made parties to the suit.” There are many decisions of the supreme court to the same effect, a number of which are cited in the opinion from which the above quotation is taken, and in the opinion of this court in the case of Craswell v. Belanger, supra.
The important allegations of the complaint in the suit under consideration are the following: That the defendant Francis M. Tull' and one Lucy A. Tull were husband and wife on the 18th of July,. 1888, and were then seised in fee of certain community property situated in the city and county of Spokane, Wash., and specifically described in the complaint, on which day Lucy A. Tull died, leaving surviving her husband, the defendant Francis M. Tull, and three children, issue of herself and her said husband, namely, the plaintiff Dora May • Dormitzer, intermarried with one Paul Dormitzer, the plaintiff William M. Tull, and the defendant Ernest B. Tull; that these children were the only issue of Lucy A. Tull, and at the time of her death all of them were minors; that they inherited their mother’s undivided one-half of the property mentioned, and thereupon became seised in fee of the undivided half thereof, 'share and share alike, and that their father, the defendant Francis M. Tull, remained the owner in fee of the other undivided one-half of the property; that shortly after the death of Lucy A. Tull, the defendants German Savings &
It needs no argument to show that, under the allegations of the complaint, the defendant Francis M. Tull is an indispensable party to the suit. The frauds of which the plaintiffs complain are largely his alleged frauds, the accounting the plaintiffs seek is of moneys alleged to have been received by him and the defendant German Savings & Loan Society, and the property they seek to recover or to have partitioned or sold is property in which he is alleged to have
We think it very clear that no case for removal was presented, and that the circuit court was without jurisdiction of it. The judgment of the circuit court is therefore reversed, with costs against the plaintiff in error, and the case remanded, with directions to the circuit court to enter judgment against the plaintiff in error for the costs incurred in the circuit court and in this court, and thereupon to remand the case to the state court from whence it came.