128 F. 987 | U.S. Circuit Court for the District of Massachusetts | 1904
This is a motion to remand a case removed from the state court. All the elements authorizing removal are conceded to exist, except with reference to the citizenship of the parties to the controversy. The plaintiff sues as a receiver of a corporation, constituted as such by this court. He is a citizen of the state of. Pennsylvania. The defendant, who removed the case from the state court, is a citizen of the state of New York; and whatever other parties there are to the suit, if any, are citizens of other states than Massachusetts. The plaintiff, simultaneously with the filing of the case in this court, moved to remand, as we have said. Consequently there is no possibility that we can find a waiver, as we did in Philadelphia & Boston Face Brick Co. v. Warford (C. C.) 123 Fed. 843, where, in accordance with our practice giving effect to decisions of the various Circuit Courts of Appeals in other circuits, we followed Guarantee Co. of North America v. Mechanics’ Sav. Bank & Trust Co., 80 Fed. 766, 26 C. C. A. 146. We are now compelled to go deeper into the construction of the statute governing these questions than we did at that time.
The fact that the plaintiff is a receiver appointed by a federal court does not aid the defendant, because the issues involved in the case do not raise any federal question. Therefore Gableman v. Peoria Railway Company, 179 U. S. 335, 21 Sup. Ct. 171, 45 L. Ed. 220, is decisive against any right to remove the suit on that account. Indeed, no claim is made otherwise by either party.
The counsel on either side have cited to us a long list of decisions pro and con, many of which are grouped conveniently in Foulk v. Gray (C. C.) 120 Fed. 156. Only two of these decisions have authoritative weight with us. These, moreover, harmonize with the natural reading which we give the statute, which is sections 1 and 2 of the act of August 13, 1888, c. 866, 25 Stat. 433, 434 [U. S. Comp. St. 1901, pp. 508, 509]. We make no reference to any earlier statute, because, as this statute was intended to codify the law, with an undoubted further intention of modifying it, little aid can be procured from previous legislation on this particular point. Also the proposition so often urged, that this statute intended to narrow the jurisdiction of the federal courts, does not illuminate to any great extent. Such a proposition cannot contravene clear phraseology, and, more than that, while the general purpose of a statute may be in a certain' direction, there may be subordinate purposes in another. In this case, while the general purpose may well be held to narrow the jurisdiction of the federal courts, yet, in regard to some particulars, it is not violent to presume that it intended to wipe out previous inequalities and inconsistencies, even though so doing involved broadening jurisdiction to a certain extent. However all this may be, we find no assistance in the interpretation of this statute arising from the application of the general proposition referred to.
In the case last cited, at page 208, 157 U. S., page 565, 15 Sup. Ct., 39 L. Ed. 672, the opinion rendered in behalf of the court made some explanation of the propositions which we have stated. It is there said that the jurisdiction of a Circuit Court on removal is “limited to such suits as might have been brought in that court by the plaintiff tinder the first section,” which we have been analyzing. This language might possibly have been held to be so broad as to have reference to the whole of the section, including the second division thereof, which prohibits suits except in certain districts. That such was not the intention, however, is made entirely plain by what follows: “The
Turning now to the second section, which provides for removal, it opens as follows:
“Any suit of a civil nature” “arising under the Constitution or laws of the United States,” “of which the Circuit Courts of the United States are given original jurisdiction by the preceding section” “may be removed by the defendant.” “Any other suit of a civil nature” “of which the Circuit Courts of the United States are given jurisdiction by a preceding section” “may be removed” “by the defendant or defendants therein, being non-residents.”
There is nothing in this section which contains any limitation with reference to the portions which we have cited; and this language is as broad as .that of the first division of section i, which, subject to the limitation of the amount involved, and subject also to the limitation as to suits by assignees contained.in the third division of the same section, confers, as we have said, the entire constitutional jurisdiction. Therefore, inasmuch as the mere question of districts in which suits are to be brought is a personal matter, which does not affect the courts themselves, there is no reason why the language of the second section, which, with the exception of substituting the equivalent word “jurisdiction” for the word “cognizance,” uses precisely the language of the first division of the first section, should be narrowed on account of the second division of that section. Therefore, as we have already said, the second section reads naturally into the first division of the first section, subject only to the limitations contained therein, and to those in the third division of which we have spoken, and which are the only strictly jurisdictional limitations found in that section.
This is a just construction of the law, which it is not presumptious to hold that Congress had in view, because it balances the privileges of the parties. The plaintiff in this case might have gone into the federal courts by suing the defendant in the district of his residence; and that privilege is equalized by permitting the defendant to go into the federal courts if the plaintiff, for some reason peculiar to himself, avoids both the district of his own residence and that of the residence of the defendant, and goes into a district of which neither of them is an inhabitant.
This natural reading of the statute is'in harmony with the only decisions which we are accustomed to follow. Observing the practice to which we have referred, according to which we give effect to the decisions of the Circuit Courts of Appeals of other circuits, Memphis Sav. Bank v. Houchens, 115 Fed. 96, 102, 52 C. C. A. 176, decided by the Circuit Court of Appeals for the Eighth Circuit, is quite authoritative, although the line of reasoning therein is not entirely satisfactory. Memphis Sav. Bank v. Houchens, it may be well to. observe, was.decided in March, 1902, which was subsequent to Mexican National Railroad Company v. Davidson, ubi supra, so that the latter case does not impugn its authority. The most satisfactory decision, however, and one which is quite authoritative so far as we are concerned, as it was decided by Mr. Justice Gray in the Circuit Court for
We have cited all the decisions which are authoritative with us, and, in view of them, and of the natural reading of the statute as we have explained it, we conclude that the suit was properly removed to this court.
The motion of the plaintiff to remand the case to the Supreme Judicial Court for the county of Suffolk and commonwealth of Massachusetts, from which it was removed, is denied.