Philadelphia & Boston Face Brick Co. v. Warford

123 F. 843 | D. Mass. | 1902

PUTNAM, Circuit Judge

(orally). I wish to say that I have not been able to find such authority on this question of removal as I had hoped for. The difficulty arises from the fact that, as neither party is a citizen of Massachusetts, the suit could not, under the terms of the jurisdictional statutes, have been brought in this court. Yet, nevertheless, if it had been brought here. Although the citizenship of the parties is not that named by the statute, it is thoroughly well settled that, if all parties had appeared and made no seasonable objection, the court would have jurisdiction, because they are citizens of different states.

In a suit brought by a receiver (Baggs v. Martin, 179 U. S. 206, 21 Sup. Ct. 109, 45 L. Ed. 155) the court says that it would properly have been brought in the state court, but that, inasmuch as a Circuit Court had constitutional jurisdiction of a case of that character, and the parties had not objected, it could retain jurisdiction. Does that decision apply to a removal suit? I lean to the conclusion that, inasmuch as these parties are citizens of different states, and both appeared generally in this court, we have jurisdiction, and should not remand; in that respect following out the analogies of like suits originally brought here and Baggs v. Martin.

A decision which bears quite directly on the question is by the Circuit Court of Appeals for the Sixth Circuit (Guaranty Company v. Mechanics’ Savings Bank, 26 C. C. A. 146, 80 Fed. 766, 771). There were several defendants, and the suit was removed by one of them. The court found that there was no separable controversy, but that inasmuch as the Circuit Court had constitutional jurisdiction between the parties, and they had gone to trial without objection, it properly retained the case.

Here the defendants removed this case, and the plaintiff appeared generally nearly a year ago, and made a motion to amend, all without reserving, or even suggesting, any question of jurisdiction. After so long a delay, I think both parties have waived the right to remand.

On the other hand, the Supreme Court has held that the right to remove to the Circuit Court depends on the case as it appeared to the state court, and that if, on the record made in the latter court, there was no fundamental right to remove, it should retain jurisdiction. Nevertheless, under the circumstances, I cannot do otherwise than hold both parties could waive, and have waived, the right to remand to the state court.

The motion to remand is overruled.