Sutton v. Pacific S. S. Co.

3 F.2d 72 | W.D. Wash. | 1924

NETERER, District Judge

' (after stating the facts as above). The petition on removal prima facie fixes the jurisdiction in this court, which continues until it is established to a “legal certainty” that the court is without jurisdiction. Hill v. Walker, 167 F. 241, 92 C. C. A. 633, certiorari denied 214 U. S. 517, 29 S. Ct. 698, 53 L. Ed. 1064, followed by the Circuit Court of Appeals of this circuit in Big Sespe Oil Co. v. Cochran, 276 F. 216. The above is the substance of the record as to the citizenship of the plaintiff. The petition on removal asserts the plaintiff to be a citizen of the state of Oregon. This is not denied. The citizenship was not an issuable fact, and the testimony was not directed to an issuable fact in the ease. The, Supreme Court, in Hartog v. Memory, 116 U. S. 588, at page 590, 6 S. Ct. 521, 522 (29 L. Ed. 725), says:

“Neither party has the right, however, without pleading at the proper time and in the proper way, to introduce evidence the only puipose of which is to make out a ease for dismissal. The parties cannot call on the court to go behind the averments of citizenship in the record, except by a plea to the jurisdiction or some other appropriate form of proceeding. The case is not to be tried by the parties as if there was a plea to the jurisdiction, when no such plea has been filed, The evidence must be directed to the issues, and it is only when facts material to the issues show there is no jurisdiction that the court can dismiss the case upon the motion of either party.”

The defendant may not, upon the allegation of citizenship in Oregon, Overcome this ’ allegation by the assumption that the plaintiff, being an Indian, is not a citizen and has not severed her tribal relations, nor by the statement that her home is in Alaska overcome the positive assertion under oath in the petition for removal. Many persons, the writer included, invariably refer to the residence of father and mother as home after many years’ residence and citizenship elsewhere. It was not even sought by cross-examination to fix citizenship in Alaska to a certainty, or to show that tribal relations had not been severed.

Another question is disclosed by. the' record. The contract for transportation, the basis of this action, is an admiralty contract (Benedict on Admiralty, § 201; Hughes on Admiralty, § 102; Austro-American S. S. Co. v. Thomas, 248 F. 231, 160 C. C. A. 309, L. R. A. 1918D, 873; The Moses Taylor, 71 U. S. [4 Wall] 411, 18 L. Ed. 397; Atl. Trans Co. v. Imbrovek, 234 U. S. 52, 34 S. Ct. 733, 58 L. Ed. 1208, 51 L. R. A. [N. S.] 1157), and an action in personam may be maintained (Leathers v. Blessing, 105 U. S. 626, 26 L. Ed. 1192), and the issue of fact is triable by a jury (section 566, R. S. [Comp. St. § 1533]). The complaint states a cause of action at common law, as well as in admiralty. This court has common-law and admiralty jurisdiction. Jurisdiction is power to hear and determine a cause. Grignon v. Astor, 43 U. S. (2 How.) 319, 11 L. Ed. 283. The Fair v. Kohler Die Co., 228 U. S. 22, 33 S. Ct. 410, 57 L. Ed. 716. The three essentials to jurisdiction: (a) Cognizance of class of case to be adjudicated; (b) the presence of the proper parties; (c) the question to be decided within the issue-are present. Reynolds v. Stockton, 140 U. S. 254, 11 S. Ct. 773, 35 L. Ed. 464. The admiralty jurisdiction of this court was invoked by the defendant. It was not resisted by the plaintiff. This eourt as an admiralty court confessedly had jurisdiction of the subject-matter. ' The parties voluntarily appeared before this court and prayed adjudication of the tendered issue. The issue was submitted to a jury (section 566, supra), and the verdict returned. No mo-' tion was made at any time to require the ’ plaintiff to eleet between common law and admiralty. While trial by jury is a right which extends only to the 'Great Lakes, there is no inhibition against the privilege to sub- , mit an issue of fact to a jury, which privilege was silently and studiously invoked by both parties.

It is said there is distinction between removable and original .jurisdiction. This may be confessed, but both are present in this case — common-law, removable; admiralty, original. If the defendants, after filing the record in this court, had required the plaintiff to elect the procedure, it would be within the rule announced in Lambert, etc., v. B. & O. R. R. Co., 258 U. S. 377, 42 S. Ct. 349, 66 L. Ed. 671, and Gen. Ind. Co. v. L. S. Ry. Co., 260 U. S. 261, 43 S. Ct. 106, 67 L. Ed. 244. In those eases either the jurisdiction or the state court process by which the parties were brought into court was directly challenged. The court’s jurisdiction was challenged in Lorang v. Alaska S. S. Co. (D. C.) 298 E. 547. If the defendant, after service of the complaint and before filing in the state court (section 224, C. S. of Wash.), had filed the complaint, together with the claim of admiralty jurisdiction as set forth in its petition for removal and its answer, in this court, served the same on plaintiff, and the plaintiff had replied thereto,' as disclosed in the record, and both parties without objection proceeded to trial, this court’s admiralty jurisdiction would have been complete.

The fact that the complaint comes to this court through the office of the clerk of the state court, on the defendant’s petition invoking the admiralty jurisdiction, of itself does not change the status. Had the defendant required the plaintiff to elect, and if the admiralty jurisdiction had been elected, and then moved to dismiss because not removable, but original, jurisdiction, it would be in a position to challenge this court’s jurisdiction now. When the issue of which this court had original jurisdiction was submitted by the parties, both parties appearing and contesting the issu,e, the original jurisdiction of this court was asserted. Lorang v. Alaska S. S. Co. (1924) A. M. C. 1240, is not in' point. That order was entered for the purpose of expediting a decision of the appellate court to review (298 F. 547, supra), and the jurisdiction of this court was challenged at the threshold of that case.

Process is said to be the means of compelling ‘a defendant to appear in court, or nieans used to acquire jurisdiction of a defendant (Wilson v. Railroad Co., 108 Mo. 588, 18 S. W. 286, 32 Am. St. Rep. 624); a writ issued by a court or officer exercising judicial power- (Tweed v. Metcalf, 4 Mich. 579; Taylor v. U. S. [C. C.] 45 F. 531). No state court process was challenged, nor was the procedure here questioned. Procedure simply means legal rule for bringing parties into court, and disposition after brought in. Kring v. Mo., 107 U. S. 221, 2 S. Ct. 443, 27 L. Ed. 506.

Law, process, and rules of procedure are simply crystallized common sense. The modem tendency is to administer justice, waving aside technical distinctions where justice dictates. Eddy & Bissell Live Stock Co. v. Blackburn, 70 P. 949, 17 C. C. A. 532. See, also, new rules of the Supreme Court. Justice is the purpose and aim of government. It is the substance, and not the shadow. No right guaranteed by the organic law, or any rule of right, has been denied to the defendant. Before trial, the defendant could have required plaintiff to elect. After trial, if the verdict can be sustained upon the record in either jurisdiction, the court will so adjudge. See Toledo, St. L. & W. R. Co. v. Perenchio, 205 F. 472, 123 C. C. A. 540.

There was no lack of evidence. The plaintiff testified fairly, freely, frankly, and fully. There were corroborating circumstances of her testimony. She was contradicted by the former employees of the defendant charged with the assault, who had been in-dieted, tried, and convicted in this court upon the same evidence, and who are now serving life sentences in the penitentiary. The findings of two juries who passed itpon the evidence — one finding beyond every reasonable doubt in the criminal case, and the other, in this ease, by a fair preponderance of the evidence — may well be considered suf-•fieient.

It is said the court erred in not directing a verdict for the defendant, because notice of the claim had not been given and made to the company within 10 days, as per stipulation printed on reverse side of the ticket. The defendant was fully advised. Upon arrival at the dock the plaintiff was taken to the offiee of the defendant by the ship’s master, where she was interrogated by attorneys representing the defendant, and her statement taken by a stenographer and afterwards extended; all of the details were- related by the plaintiff, who was not represented by counsel or next friend, and under the circumstances it would be most unjust to hold that this minor Indian child, after having disclosed to the defendant every element of fact with relation to the assault, could be barred by the ten-day 'limitation printed in small type on the back of the ticket, and to which her attention had not been challenged. This court, in Blackwell v. Alaska S. S. Company, 1 F.(2d) 334, held such provision to be unreasonable, and there is no reason to modify the conclusion then' reached.

Each motion is denied.