121 F. 785 | 9th Cir. | 1903
after stating the case as above, delivered the opinion of the court.
It is assigned as error that the court denied the motion to remand the cause to the state court. It is argued that since the plaintiff in error was a citizen of the state of Washington, and one of the defendants in error was a citizen of West Virginia, and the other an alien, no cause was made for removal under the removal $ct of 1887 (24 Stat. 552 [U. S. Comp. St. 1901, p. 507]), and under the doctrine as stated in Black’s Dillon on Removal of Causes, §§ 68, 84, in the latter of which sections it is said:
“But a different question is presented when a plaintiff, citizen of the state where the suit is brought, sues two defendants, one of whom is a citizen of another state, and the other an alien. Here there is no community of citizenship between any of the parties. Yet the cause is not removable, because it does not come within any of the provisions of the statutes. It is casus omissus. It cannot be said to be a controversy between citizens of different states, because one of the parties is not a citizen; and it cannot be described as a controversy between citizens of a state and foreign citizens or subjects, because one of the defendants is not a foreigner.”
According to this doctrine, an action brought by a citizen of a state against a citizen of another state and an alien is not removable, although, if two actions had been brought by the same plaintiff — the one against the alien and the other against the citizen — both would have been removable. The act of March 3, 1887, as corrected by the act of August 13, 1888, § 2, 25 Stat. 434 [U. S. Comp. St. 1901, p. 509], provides for removing to the Circuit Court of the United States “cases that might have been originally commenced therein.” The first section defines the original jurisdiction of the Circuit Courts,
“And when in any suit mentioned in this section there shall be a controversy which is wholly between citizens of different states and which can be fully determined as between- them, then either one or more of the defendants actually interested in such controversy may remove said suit into the Circuit Court of the United States for the proper district.”
In the present case if there were a separate controversy which was wholly between the plaintiff in error and the corporation of West Virginia, the whole case would have been properly removable at the instance of that corporation alone. The language so used in the statute indicates that, in the contemplation of Congress, a controversy might exist between citizens of different states which was not wholly between such citizens, but which might involve an alien jointly sued or jointly suing, and that such a case would be embraced in the comprehensive provision in which the jurisdiction of the Circuit Court is defined in the first section of the act above quoted. It would be a construction entirely inharmonious with the general purpose of the act and its provisions to hold that a citizen is deprived of his right-, of recourse to the federal courts by reason of the fact that he is jointly sued with an alien, who, if sued alone by the same plaintiff, would have that right. But a 'single case is cited in Black’s Dillon on Removal of Causes to sustain the text—the case of Hervey v. The Illinois Midland Railway Company, 7 Biss. 103, Fed. Cas. No. 6,434. In that case the ground of removal was that a separate controversy was presented, which was wholly between citizens of different states. The court found that the controversy was not separable, within the meaning of the act of March 3, 1875 (18 Stat. 473), providing for removal “when in any suit mentioned in this section there shall be a controversy which is wholly between citizens of different states and which can be wholly determined as between them.” Incidentally the court remarked:
*789 “Now, ‘citizens of a state,’ there, means citizens of one of the United States; and the suits contemplated are suits between citizens of one of the states of the Union, on one side, and foreign states, or citizens or subjects, on the other.”
This language which is relied upon as giving support to the doctrine which is contended for by the plaintiff in error was used with reference to a point not presented in the case then before the court, and the remark of the court has not the force of a precedent upon the question involved. Several cases were cited by the plaintiff in error as tending to sustain the point of law which he contends for, only two of which we find it necessary to advert to: Tracy v. Morel (C. C.) 88 Fed. 801, and King v. Cornell, 106 U. S. 395, 1 Sup. Ct. 312, 27 L. Ed. 60. In the first of these cases, Munger, District Judge, sustained a motion to remand on the ground that the petition did not show that the citizenship of one of the defendants, whose citizenship and residence were alleged to be unknown, was in fact diverse from the citizenship of each of the plaintiffs. After denying its jurisdiction upon that ground, the court proceeded to remark, “Nor can jurisdiction be sustained on the ground that it is a controversy between citizens of a state and foreign citizens or subjects,” and quoted with approval the language of section 84 of Black’s Dillon on Rem. Causes. The motion to remand in that case raised only the question whether the petition to remove was filed too late, and the remarks of the court so quoted were obiter. We are unable to find in the case of King v. Cornell any support for the contention of the plaintiff in error. All that was held in that case was that by the act of March 3, 1875, the second clause of section 639 of the Revised Statutes, giving the right to an alien to remove a cause which presented as to him a separable controversy, was repealed, and that thereafter, where a citizen of a state sued in the court thereof a citizen of the same state and an alien, the latter was not entitled to remove the suit to the Circuit Court. The decision, it is true, reaffirms the general doctrine which has always been recognized that the federal courts have jurisdiction only of cases which are expressly enumerated in the words of the constitution and laws. What we hold in the present case is that the cause is within the language of the statute, in that it presents a controversy between citizens of different states, as well as a controversy between a citizen of a state and a foreign citizen.
It is contended further that the cause was not properly removable, for the reason that the petition for removal alleges concerning the British Columbia Yukon Railway Company only the fact that it was at the time of the filing of the petition a corporation incorporated under the provincial legislature of the province of British Columbia. It is true that, in order to present a case for removal, it must be shown that the citizenship of the parties was at the beginning of the action, as well as at the time of filing the petition, such as to authorize the removal. But where it is alleged in the petition that one of the parties is a corporation incorporated under the laws of a particular state or country, it necessarily follows from that averment that it was so incorporated at the time when it became a party to the
Error is assigned to the admission of certain evidence upon the trial. To sustain the allegation of the complaint that a contract had been entered into, the correspondence between the parties was admitted in evidence. The court submitted to the jury the question whether these writings, together with other evidence consisting of certain conversations which preceded them, constituted a contract. No error is assigned, however, to the submission of that question to the jury; and the question whether or not the writings prove that a contract was made and entered into would not now be before us, were it not for the fact that the court permitted the defendants in error to offer in evidence the subsequent writing known as “Defendants’ Exhibit No. 2.” L. H. Gray, who was the manager of both the defendants in error, testified on their behalf that he notified the plaintiff in error, after the latter arrived in Alaska with his teams, outfit, and horses, that the defendants in error could not give him any freight, on account of the high rates he wanted from the Summit to Lake Bennett, and notified him and other packers that it would be necessary to reduce the rates still lower, whereupon the plaintiff in error replied that he could not carry freight for almost nothing, and that he did not want freight at the reduced rates, which mus"t be had to compete with the Dyea Trail, but that thereafter he signed said Exhibit No. 2, which was received and read in evidence; that later the witness notified the plaintiff in error that he must make a still lower cut in the freight rate from the Summit- to Lake Bennett; and that the plaintiff in error stated that he did not want freight upon those rates. To this evidence and the exhibit the plaintiff in error objected on the ground that the defendants in error had not pleaded a rescission or modification of the contract. The court admitted the said testimony and exhibit in evidence, and instructed the jury that it was not admitted for the purpose of showing a rescission or modification of the contract, but as evidence to aid them in deciding whether or not a contract had been entered into. This is assigned as error. The correspondence between the parties shows that a contract was entered into. It is true that not all of its terms were definite, and not all of the proposals of the plaintiff in error were accepted, but there was a meeting of their minds upon some of them. By his first letter the plaintiff in error offers to haul freight from the Summit to Lake Bennett for the season commencing January 15, to April 15, 1899, or until the roads should break up in the spring, at the rate of 4cents per pound, and offers to guaranty to put on sufficient teams to haul 100 tons a month or more. The
The judgment is reversed, and the cause remanded for further proceedings not inconsistent with these views.
