256 F. 882 | N.D.N.Y. | 1919
The plaintiff, Emilio Matarazzo, is, as yet, a citizen and subject of the kingdom of Italy, but now is and for some years has been an actual resident and inhabitant of the county of Sara-
Under the Constitution of the United States (section 2, art. 3) the judicial power extends to all cases in law and equity “between a state, or the citizens thereof and foreign states, citizens or subjects.” The Judicial Code (Act March 3, 1911, c. 231, 36 Stat. 1091 [Comp. St. § 968 et seq.]) provides (section 24 [Comp. St. § 991]) that—
“Tire District Courts shall have original jurisdiction as follows: * * * Where the matter in controversy exceeds, exclusive of interest and costs, the sum or value of three thousand dollars, * * * or * * * is between citizens of different states, or * , * * is between citizens of a state and foreign states, citizens, or subjects.”
Hence this is a case to which the judicial power of the United States extends, and one of which the United States District Court has original jurisdiction. There is no chance for quibble over this language. The plaintiff is a citizen and a subject of the kingdom of Italy, a foreign state, and defendant is a citizen of the state of Massachusetts. The cause of action alleged arose in the Northern district of the state of New York, of which the plaintiff is an actual resident and inhabitant, and the suit is of a civil nature. The plaintiff brought his action in the county of Saratoga in that judicial district.
“Anv other suit of a civil nature, at law or in equity, of which the District Courts of the United States are given jurisdiction by this title, and which are now pending or which may hereafter be brought, in any state court, may be removed into the District Court of the United States for the proper district by the defendant or defendants therein, being nonresidents of that state.” Section 28, Judicial Code, subdivision 2, title, The Judiciary, c. 3 (Comp. St. § 1010).
The first subdivision of the section relates to “any suit of a civil nature, at law or in equity, arising under the Constitution or laws of the United Stales, or treaties made, or which shall be made, under Iheir authority of which the District Courts of ihc United States are given original jurisdiction by this title,” etc. This suit, clearly, is one of the class “any other suit of a civil nature,” and it is an action at law, and one of which the District Courts of the United States is given jurisdiction by “this title.” Title, “The Judiciary.”
“in all cases of the removal of suits from the courts of a state to the District Court of the United States such removal shall bo to the United States District Court in the division in which the county is situated from which the removal is made.”
Hence this case, if removable, was removed to the proper District Court. It is now settled that the words “for the proper district,” used in section 28 of the Judicial Code, refer to the “proper district” to which a cause may be removed as stated in section 53 of the Judicial Code, and not to the “proper district” for bringing such a suit originally, if brought in the District Court of the United States in the first instance. Ostrom v. Edison (D. C.) 244 Fed. 228. It would seem that the decided cases settle the question of the removability of the instant case. Matter of Tobin, Petitioner, 214 U. S. 506, 29 Sup. Ct. 702, 53 L. Ed. 1061. See, also, Matter of Nicola, 218 U. S. 668, 31 Sup. Ct. 228, 54 L. Ed. 1203; Rones v. Katalla Co. (C. C.) 182 Fed. 946, 947; Morris v. Clark Construction Co. (C. C.) 140 Fed. 756; Sherwood et al. v. Newport News & M. V. Co. et al. (C. C.) 55 Fed. 1; Manufacturers’ Com. Co. v. Brown A. Co. (C. C.) 148 Fed. 308; Iowa L. G. M. Co. v. Bliss et al. (C. C.) 144 Fed. 446; James v. Amarillo C. L. & W. Co. (D. C.) 251 Fed. 337; Louisville & N. R. Co. v. Western Union Tel. Co. (D. C.) 218 Fed. 91.
The Judicial Code not only fixes the place or district in which suits in the United States District Court are to be brought or commenced (sections 40 to 56 inclusive [Comp. St. § 1022-3038]), but fixes the place or District Court into which a cause commenced in the state court of a state must be removed, if removed (section 53, Judicial Code).
In the case of actions of a local nature neither consent of the parties nor assumption of jurisdiction by the court, nor both together, can confer it. Minnesota v. Northern Securities Co., 194 U. S. 48, 62, 24 Sup. Ct. 598, 48 L. Ed. 870; Mansfield v. Swan, 111 U. S. 379, 4 Sup. Ct. 510, 28 L. Ed. 462; Parker v. Ormsby, 141 U. S. 81, 11 Sup. Ct. 912, 35 L. Ed. 654.
But this is outside the questions here.
Where air alien sues a citizen in a state court in which state such defendant does not reside, the defendant may remove the case into the United States court, and it will not be remanded. H. J. Decker, Jr., & Co. v. Southern Ry. Co. (C. C.) 189 Fed. 224. Having there brought his suit, and defendant not objecting, the plaintiff cannot then complain that he could not have sued defendant in such district, and that hence the cause was improperly removed. H. J. Decker & Co. v. Southern Ry. Co., supra. In Rones v. Katalla Co. (C. C.) 182 Fed. 946, it was held that an action brought by an alien in a state court against a nonresident of such state in which the suit was brought may be re-'
In re Tobin, 214 U. S. 506, 29 Sup. Ct. 702, 53 L. Ed. 1061, followed in Ex parte Nicola, 218 U. S. 668, 31 Sup. Ct. 228, 54 L. Ed. 1203, can hardly be considered an authority controlling on the question involved here. The judge below had refused to remand the cause. Lie had performed his duly by deciding the question involved. It was sought to compel him to change that decision and make another by mandamus. The Supreme Court discharged the rule and refused to grant the writ, but did not indicate on what ground it made its decision. It remained silent on the questions whether or not the cause was a removable one and whether or not it should have been remanded. We may infer that the court was of the opinion the case was a removable one, and that remand was properly refused, or we may infer that the court was of opinion that mandamus was not the proper mode of correcting the error, if there was error, in refusing to remand the cause.
“That when any civil suit or criminal prosecution is commenced in any court o£ a state against 51 * * or against any officer of the courts of the United States for or on account of any act done under color of his office or in the performance of his duties as such officer, * * * the said suit or prosecution may at any time before the trial or final hearing thereof be removed for trial into the District Court next to be holdon in the district where the same is pending upon the petition of such defendant to said District Court and in the following manner,” etc.
This provision as to suits against “any officer of the courts o£ the United States,” etc., was inserted by the amendment of 1916.
Receivers are officers of the court appointing them. Railroad Co. v. Soutter, 2 Wall. 510, 519, 17 L. Ed. 900, where the Supreme Court said, “The receiver is the officer of the court;” Chicago Union Bank v. Kansas City Bank, 136 U. S. 236, 10 Sup. Ct. 1017, 34 L. Ed. 341, where the court said, speaking of' a receiver, “And the utmost effect of his appointment is to put the property from that time into his custody, as an officer of the court;” Booth v. Clark, 17 How. 322, 331, 15 L. Ed. 164, where the Supreme Court said, “A receiver is an indifferent person between parties appointed by the court; * * * he is an officer of the court;” Stannard v. Reid & Co., 118 App. Div. 304, 314, 103 N. Y. Supp. 521, 527, where the court said, “The general rule is that receivers are officers of the court;” Ahern v. Steele, 115 N. Y. 203, 232, 22 N. E. 193, 203 (5 L. R. A. 449, 12 Am. St. Rep. 778), where the court said, “The receiver thus appointed was not their agent; * * * he was the agent and officer of the court, bound to obey its direction, and subject to its control;” Smith on Receivers, § 35; Adderson on Receivers, §§ 5-301; High on Receivers, § 188; 34 Enc. L. & Proc. 236 (Cyc.), where it is said, “A receiver by his appointment does not become a litigant in the action, but he is an officer and representative of the court appointing him,” citing numerous cases decided in many of the states of the Union; Scott, Collector, etc., v. Western Pac. R. R. Co., 246 Fed. 545, 546, 58 C. C. A. 515, 516, where the court said, “Receivers are officers of the court, and by all authority • may properly ask instructions from the court concerning the administration of 'the property in their hands;” Harrison et al. v. J. J. Warren Co., 183 Mass. 123, 124, 66 N. E. 589, 590, where the court said," “A receiver is merely a ministerial officer of the court;” Vandalia v. St. L. & T. H. R. R. Co., 209 Ill. 73, 80, 70 N. E. 662, 664, where it is said, “He [a receiver] is the officer of the court appointed on behalf of all parties to take the possession and hold it for the benefit of the party ultimately entitled; Coates v. Cunningham, 80 Ill. 467;” Kreling v. Kreling, 118 Cal. 422, 50 Pac. 550, where the court says, “A receiver is an officer or representative of the court, appointed to take the charge and management of property which is tire subject of litigation before it, for the purpose of its preservation and ultimate disposition according to the final judgment therein;” Vermont, etc., R. Co. v. Vermont Central R. Co., 46 Vt. 792, where it is held that a receiver and manager are both “officers of the court, and entitled to its protection while in the proper discharge of their duty;” Bausman v. Dixon, 173 U. S. 113, 114, 19 Sup. Ct. 316, 317 (43 L. Ed. 633), where it is held, “It is true that the receiver was an officer of the Circuit Court, * * * and, certainly, an officer of the Circuit Court stands on no higher ground than an officer of the United States;” Gableman
A receiver appointed by the courts of the United States by this amendment was put on the same footing with officers created specifically by statute, and was enacted because of conflicting decisions as to suits against receivers and their removability.
Citizenship and residence and amount in controversy are immaterial under this section as amended, when the suit is against “any officer of the courts of the United States for or on account of any act done under color of his office or in the performance of his duties as such officer.” This amendment was made to protect officers of the courts of the United States from suits in the state courts in any such case by enabling such officers when sued for the cause specified to remove the case. It applies when the action is commenced by an alien the same as when brought by a citizen, and there is no reason why it should not.
Before the insertion of the amendment quoted, as now, the first part of section 33 read:
“That when any civil suit or criminal prosecution is commenced in any court of a state against any officer appointed under or acting by authority of any revenue law of the United States now or hereafter enacted, or against any person acting under or by authority of any such officer, on account of any act done under color of his office or of any such law, or on account of any right, title, or authority claimed by such officer or other person under any such law; or is commenced against any person holding property or estate by title derived from any such officer, and affects the validity of any. such revenue law,” the said suit or prosecution may be removed, etc.
The constitutionality of this provision was upheld in Tennessee v. Davis, 100 U. S. 257, 25 L. Ed. 648. It was enacted to facilitate the enforcement of the revenue laws of the United States, and because one of the states of the Union had attempted to make penal the collection by officers of the United States within the state of duties under the revenue laws. Tennessee v. Davis, 100 U. S. 257, 25 L. Ed. 648; People’s United States Bank v. Goodwin (C. C.) 162 Fed. 937. Its purpose was to protect the revenue officers of the United States and all who might be engaged in aiding and assisting them in the performance of their duties. Johnson v. Wells Fargo & Co. (C. C.) 98 Fed. 3, 8; Davis v. South Carolina, 107 U. S. 597, 2 Sup. Ct. 636, 27 L. Ed. 574; Commonwealth of Virginia v. De Hart (C. C.) 119 Fed. 626. See, also, City of Philadelphia v. Collector, 72 U. S. (5 Wall.) 720, 18 L. Ed. 614, and Venable v. Richards, 105 U. S. 636, 26 L. Ed. 1196; Downes v. Bidwell, 182 U. S. 244, 21 Sup. Ct. 770, 45 L. Ed. 1088. Prior to the amendment of 1916, suits against United States commissioners for acts done as such (Benchley v. Gilbert, Fed. Cas. No. 1,291), and United States marshals for seizure of property under process issued by a federal court in a suit between individuals (Mayo v. Dockery [C. C.] 108 Fed. 897) could not be removed to the United States court except on the grounds stated in the general removal act; that is diversity of citizenship and requisite amount in controversy must exist. The increasing frequency of annoying and vexatious suits against officers of the United States courts, including receivers and commissioners appointed by such courts, induced and made necessary the amendment to the statute above quoted.
It was also necessary, or at least proper, to settle the question whether receivers appointed by a United States court and marshals and clerks of the court, where sued in the state courts for their official acts or acts done under color of their offices and in the discharge of their duties, might remove the case into the United States court for trial
“Where a receiver of a corporation was appointed by a federal court, an action against the receiver for injuries to an employs was maintainable in such court, though there was no federal question involved nt»r diversity of citizenship.”
This because such a suit is ancillary to the original suit, and the judgments are payable from the property in the hands of the receiver.
In Gableman v. Peoria, etc., supra, the court held (179 U. S. 342, 21 Sup. Ct. 174, 45 L. Ed. 220):
“11 should be added that while these actions against receivers may be brought in other courts, they may nevertheless also be brought in the court by which the receiver was appointed, Inasmuch as the judgments recovered are payable from ilie property or funds in the course of administration, and the actions may be regarded as ancillary in the sense of subordination to such administration.”
In White v. Ewing, 159 U. S. 36, 39, 15 Sup. Ct. 1018, 1019 (40 L. Ed. 67), the court said:
“The Circuit Court obtained jurisdiction over the Cardiff Coal Sc Iron Company by the filing of the original creditor’s bid by Bosworüi, a citizen of Aía-viacímseíts, and by the appointment of a receiver, and any stilt by or against such receiver, in the course of the winding up of such corporation, whether for the collection of its assets or for the defense of its property rights, must be regarded as ancillary to the main suit, and as cognizable in the Circuit Court, regardless either of the citizenship of the parties or of the amount in controversy. Freeman v. Howe, 24 How. 450, 460 [16 L. Ed. 749]; Krippendorf v. Hyde, 110 U. S. 276 [4 Sup. Ct. 27, 28 L. Ed. 145]; Dewey v. West Fairmont Gas Coal Co., 123 U. S. 329 [8 Sup. Ct. 148, 31 L. Ed. 170]; In re Tyler, 149 U. S. 164, 181 [13 Sup. Ct. 785, 37 L. Ed. 689]; Root v. Woolworth, 150 U. S. 401, 413 [14 Sup. Ct. 136, 37 L. Ed. 1123]; Rouse v. Letcher, 156 U. S. 47, 49 [15 Sup. Ct. 266, 39 L. Ed. 341].”
There can be no doubt that suits against a receives’ appointed byr a court of the United States brought in the state court may be removed for trial to the United States ‘District Court of the district where pending' when diversity of citizenship and requisite amount in controversy exist, and that such a suit, when such facts exist, brought by an alien, may be removed, unless it be held that section 34 specifies the only case in which a suit brought by an alien can be removed. But no such construe! ion can reasonably be given, for section 34 must be read in connection with section 33, and, so read, it merely provides that when an alien sues a citizen of the United States who is or who, when the alleged cause of action accrued, was a civil officer of the United States and a nonresident of the state in which the suit was brought, irrespective of the amount involved or in controversy, the suit may be removed by the defendant. Section 33 does not embrace in its terms “civil officers” of the United States, and hence a civil officer of the United States, when sued in the state court, cannot remove the cause, except when it comes within section 34, that is, when plaintiff is an alien, irrespective of the amount in controversy.
A defendant in such a case as is mentioned in section 34, that of a
As I understand, the main contention of the plaintiff’s counsel is that the plaintiff, having brought his action in the Northern district of New York, where he could not have brought it, being an alien, had the defendant objected, he thereby deprived the defendant, a nonresident of the state of New York, of the right to remove the cause to the United States District Court, a right he would have had had the suit been brought in the state court of the district of Massachusetts. Section 51 of the Judicial Code (Comp. St. § 1033) provides:
(A) “No civil suit sltall be brought in any district court against any person by any original process or proceeding in any other district than that whereof he is an inhabitant,” and (B) 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.”
This is not a case that comes under B above, as it is not a suit between citizens of different states. The plaintiff is not a citizen of any state. The defendant is not an inhabitant or citizen of the Northern district of New York, and if he had objected,’ the plaintiff could not have obtained jurisdiction of his person by suing him there. But the defendant did not object. He waived the personal privilege of being sued in the district of Massachusetts, of which district he was an inhabitant. The subject-matter of the suit is within the jurisdiction of the District Court of the Northern District of New York. The plaintiff, an alien, having come into the Northern district of New York and there brought his suit against defendant, who did not object to being sued in that district, and the cause being one of which any District-Court of the United States has jurisdiction and of which the District Court of the Northern District of New York would have had jurisdiction had it been brought in that court originally, it does not lie with the plaintiff to say the cause cannot be removed to the District Court specified in section 53. The suit was brought by the plaintiff in the state court, and is now pending, and it is one of which “the District Courts of the United States are given jurisdiction,” and the defendant is a nonresident of the state of New York. It is therefore a suit of a civil nature, at law, of which the District Courts of the United States are given jurisdiction by the title “The Judiciary,” and was brought after section 28 of the Judicial Code was enacted, and defendant is a nonresident of the state in which the suit was brought. In Park Square, etc., v. American Locomotive, etc. (D. C.) 222 Fed. 979, this court held that the words “proper district,” used in section 28, meant the district in which the suit should have been brought, and refused to remand.
It is true that the writ of error was dismissed and the Supreme Court of the United States denied mandamus (244 U. S. 412, 37 Sup. Ct. 732,
“In all eases of tlie removal oí suits from the courts of a state to the District Court of the United States such removal shall be to the United States District Court in the division in which the county is situated from which the removal is made”
—and section 29 provides that the petition for removal under section 28, except in case of removal sought on the ground of local prejudice, shall be “for the removal of such suit into the District Court to be held in the district where such suit is pending,” referring to the pending of the suit in the state court.
As the provisions for the bringing of a suit in personam (not local in its character) in the United States District Court in a particular dis-triqt is one for the benefit and protection of the defendant, and which does not go to the jurisdiction of the court over the subject-matter of the suit (when in personam), and such right may be waived, and in this case has been waived, I am constrained to hold that the case was a removable one irrespective of section 33 of the Judicial Code, and was properly removed, and that the motion to remand must be denied.
I am also of tlie opinion that this case is one within the provisions of section 33 of the Judicial Code, and may be removed by the defendant into the District Court of the United States at any time before trial
In re Moore, 209 U. S. 506, 28 Sup. Ct. 585, 706, 52 L. Ed. 904, 14 Ann. Cas. 1164, is not a holding that this cause cannot be removed. In that case Moore, an infant and a citizen of'the state of Illinois, by one Salford, a citizen of Missouri, appointed his next friend by the state court of the Eastern district of Missouri for the purpose of bringing the suit, brought suit against the Louisville & Nashville Railroad Company, a corporation created and existing under the laws of tlie state of Kentucky in the state court of the state of Missouri. On its petition and in proceedings in due form the defendant thereupon moved the cause into the United States District Court for the Eastern Judicial District of Missouri on the ground of diversity of citizenship. The plaintiff could not have sued defendant in that district, but defendant did not obj ect and raise the question. Thereafter the plaintiff filed an amended complaint in the United States District Court to which the case had been removed. By stipulation of the parties defendant was given additional time to answer the amended complaint, and by otlier stipulation between the parties the trial was postponed from time to time. Thereafter the plaintiff moved to remand the cause to the state court. This motion was denied by the court, whereupon the plaintiff sought to compel a remand of the case by mandamus. Mandamus was denied. The court held that while consent of all parties cannot confer jurisdiction of the subject-matter of a suit, the suit in question was one relating to a subject-matter of which the District Courts of the United States generally are given jurisdiction, and therefore the Dis
“The act of Congress prescribing the place where a person may be sued is not one affecting the general jurisdiction of the courts. It is rather in the nature of a personal exemption in favor of a defendant, and it is one which he may waive. If the citizenship of the parties is sufficient, a defendant may consent to be sued anywhere he pleases, and certainly jurisdiction will not be ousted because he had consented.”
See, also, the several cases on this subject quoted from In re Moore, supra. The court there (page 506 of 209 U. S., at page 591 of 28 Sup. Ct. [52 L. Ed. 904, 14 Ann. Cas. 1164]) says:
“As we have seen in this case, the defendant applied for a removal of' the case to the federal court. Thereby he is foreclosed from objecting to its jurisdiction.”
The court then said:
“In like manner, after the removal had been ordered, the plaintiff elected to remain in that court, and he is, equally with the defendant, precluded from making objection to its jurisdiction.”
The court then expressly repudiates the statement in the Wisner Case at page 460 of 203 U. S. 27 Sup. Ct. 150, 51 L. Ed. 264. In re Moore does not hold, even by necessary implication, that where an alien, not a citizen of any state, selects the state court in which he will sue a defendant, and sues, and defendant waives the right to be sued in a particular district, such defendant may not remove the cause into the District Court of the district in which such suit is brought and is pending at the time of removal, under the specific language of section 28 of the Judicial Code. There is nothing in the removal statutes which forbids the removal of such a case as this, and it seems to me that when this alien plaintiff sued the defendant outside the district of his residence he submitted himself to and consented to the consequences of such action. Diversity of citizenship is not involved in this case. I cannot see that any further consent of the alien plaintiff to accept the jurisdiction of the United States District Court was necessary. If I am not correct in my conclusions, then Matter of Tobin, 214 U. S. 506, 29 Sup. Ct. 702, 53 L. Ed. 1061, followed in the Matter of Athanasi Nicola, 218 U. S. 668, 31 Sup. Ct. 228, 54 L. Ed. 1203, is a snare for the unwary practitioner and the lower courts. The court in Matter of Tobin, supra, says:
“It is conceded that the plaintiff was and is an alien, and that the defendant is not a resident or citizen of the state of Minnesota,” in the state court of which state the suit was commenced.
This language and statement of fact has significance. The court might have indicated the cause was not removable had that been its
But irrespective of all this this receiver, an officer of the United States District Court of the District of Massachusetts may, as stated, remove the case at any time into the United States District Court under the provisions of section 33 of the Judicial Code.
Motion to remand is denied.
