No. 532 | U.S. Circuit Court for the District of Maine | Aug 26, 1901
This is a bill in equity, raising on a plea by the respondent Vermeule an issue of jurisdiction. The topic has been before us in this case on several occasions, when we have expressed our views orally from our recollection of the rules laid down by the supreme court. Our examination of the authorities shows that we had them correctly in mind, and we will now make some formal references to them.
The complainant is a citizen and resident of New Jersey, the respondent Vermeule is a citizen and resident of the state of New York, and the other respondents are citizens and residents of Maine. As the matter now comes before us, Vermeule claims that the bill is brought in a district of which neither he nor the complainant is a resident, and that, therefore, this court has no jurisdiction over him. This is the only question now before us, although, as already said, we deem it well, in this opinion, to point out the various steps by which that condition of the issues has ultimately been reached. It is not now questioned by the complainant that the residences of the parties are as claimed by Vermeule. Vermeule passes his summer
A member of this bar entered a general appearance for Vermeule on the return clay of the subpoena. Afterwards he moved the court that his appearance be stricken out, on the ground that it was made through misapprehension; and we, exercising the broad equity powers always exercised by the federal courts in this regard, granted the application. The complainant maintains, on the one hand, that the respondent, having thus appeared, waived the question of jurisdiction so far as residence in the state is concerned, which, according to well-settled rules, he might have done. On the other hand, the appearance having been stricken out, the question was suggested whetheri or not the result thereof was not to open all matters with reference to the method of serving the subpoena, as well as the point against jurisdiction arising out of the fact that Vermeule does not reside within the district of Maine. The court expressed its opinion adversely to both propositions, holding, as to the first, that it had broad equitable powers with reference to striking out appearances made under misapprehension, thus relieving parties from unintended waivers of all fundamental questions as to jurisdiction or otherwise, but that, an appearance having been entered, it followed, necessarily, that the respondent for whom it was entered must, impliedly, have received notice of the pendency of the cause, and that, consequently, the mere matter of form of service on him could not be 'afterwards opened. In all these respects the court is sustained by the propositions announced in U. S. v. Yates, 6 How. 605" court="SCOTUS" date_filed="1848-03-18" href="https://app.midpage.ai/document/the-united-states-v-henry-yates-and-archibald-mcintyre-86465?utm_source=webapp" opinion_id="86465">6 How. 605, 606, 608, 12 L. Ed. 575" court="SCOTUS" date_filed="1848-03-18" href="https://app.midpage.ai/document/the-united-states-v-henry-yates-and-archibald-mcintyre-86465?utm_source=webapp" opinion_id="86465">12 L. Ed. 575. It is not necessary to refer to that opinion in detail, ‘ or to the subsequent opinions of the supreme court showing that our decision on these propositions harmonizes with the settled rules of practice of the federal tribunals. Rio Grande Co. v. Gildersleeve,
Coming to the issue which we have now to determine, the plea of Vermeule raising it was signed by a solicitor, whose appearance for that purpose must be accepted, under the practice of the federal tribunals as settled by the supreme court, to be limited to the purpose of entering the plea. Nevertheless, the complainant seeks for apply to a federal court, with reference to a question of statutory jurisdiction, the technical rules which the common-law courts apply 1.0 pleas of abatement; and he maintains that, inasmuch as the plea at bar was signed by counsel of this court, the respondent has necessarily, in accordance with the strict rules of the common law, submitted to its jurisdiction. It is to be borne in mind, however, that the question of jurisdiction in this case appears on the face of the bill; and with reference to such questions thus appearing, and, indeed, with reference to all substantial issues of jurisdiction, the strict rules of the common law are not applied by the federal courts, but they may be raised by the parties, by counsel, by friends of the court, by plea, bv motion, by suggestion, and, indeed, often by the court itself. The authorities on this point are so numerous that it is not necessary to refer to them, but the case in which this practice is perhaps most conveniently stated, so far as the want of jurisdiction appears on the face of the bill or declaration, is found in Coal Co. v. Blatchford, 11 Wall. 172" court="SCOTUS" date_filed="1871-04-17" href="https://app.midpage.ai/document/coal-co-v-blatchford-88313?utm_source=webapp" opinion_id="88313">11 Wall. 172, 178, 20 L. Ed. 179. Jurisdictional issues, even when they involve questions of fact, may sometimes be disposed of on a mere motion and affidavits. Wetmore v. Rymer, 169 U.S. 115" court="SCOTUS" date_filed="1898-01-17" href="https://app.midpage.ai/document/wetmore-v-rymer-94805?utm_source=webapp" opinion_id="94805">169 U. S. 115, 121, 18 Sup. Ct. 293, 42 L. Ed. 682" court="SCOTUS" date_filed="1898-01-17" href="https://app.midpage.ai/document/wetmore-v-rymer-94805?utm_source=webapp" opinion_id="94805">42 L. Ed. 682, and elsewhere.
There are some things in this bill which would indicate that it was drawn with reference to section 738 of the Revised Statutes, as reenacted and broadened by section 8 of the act of March 3, 1875 (18 Stat. 472); but it contains a prayer for relief, by the way of an account, of such a character that it is not appropriate to that provision of statute, and, moreover, the form of proceedings so far has taken no cognizance of the directions which the statute contains. Therefore, we must hold that, for the present, the bill is framed under the general equity powers of the court with reference to suits between citizens of different states. The question, therefore, before us is as follows: Inasmuch as the suit ivas brought in a district in which the complainant is not a resident, must all the respondents be residents of that district? So far as the present jurisdictional statutes are concerned, it was settled authoritatively in Smith v. Lyon, 133, U. S. 315, 10 Sup. Ct. 303, 33 L. Ed. 635" court="SCOTUS" date_filed="1890-02-03" href="https://app.midpage.ai/document/smith-v-lyon-92672?utm_source=webapp" opinion_id="92672">33 L. Ed. 635, that the circuit court has no jurisdiction on the ground of diverse citizenship when there are divers plaintiffs who are citizens of, and residents in, different states-
As the bill suggests matters which are justiciable under section 8 of.the act of March 3, 1875, we reserve to the complainant leave to amend his bill, if he desires to do so. In that event, however, the amendments must clearly and positively assert a case within section 8, and clearly and positively limit the relief asked for according to the purview thereof, and it must distinctly pray for forms of proceedings as therein provided.
Unless the complainant, on or before September 23, 1901, amends his bill as permitted in the opinion filed this day, there will be a decree in behalf of Vermeule, sustaining his plea, and dismissing the bill as to him for want of jurisdiction, without costs for either party.