8 F. 650 | U.S. Cir. Ct. | 1881
The affidavit of the attorney for the petitioner shows that the omission to file the transcript on the first day of the next session of this court was an inadvertence. It was filed on the next or second day of the session, and no injury could possibly have resulted to the other parties by the failure to comply with the letter of the statute. It would be, therefore, a very harsh rule, and entirely at variance with the analogies of the practice, in this state, to hold that' a slip like that had defeated the jurisdiction of this court and destroyed the efficacy of this statute. I have been much perplexed by the conflict of opinion shown by the very few cases on the subject in the different circuits, and more by the very strict rulings of ’the supreme court in the construction of the somewhat analogous statutes regulating the jurisdiction of that tribunal on writs of error and appeal. The principle involved depends upon a solution of the question, whether the statute is directory or imperative, and this is always a question of delicacy and the utmost difficulty; particularly so, since there is well-grounded complaint that the courts are too ready on one pretext or another to dispense with the command of the legislature by an application of this rule of construction. I fully agree with all that the supreme court of Mississippi said on this subject in
“Legislative bodies must be presumed to liave enacted statutes with reference to them, as it is in their power to use language so that the statute must be considered mandatory, thereby excluding the power of the court to construe them as directory. These rules do not subvert, but carry into effect, the intention of the law-giver, as it is to be gathered from the phraseology of the statute. A strict and literal adherence to the letter and form of a statute in minor or non-essential particulars will often defeat a remedy or 'destroy a right which it was the principal intention of the legislature to create or provide.”
The supreme court, in U. S. v. Kirby, 7 Wall. 482, 486, says:
“All laws should receive a sensible construction. General terms should be so limited in their application as not to lead to injustice, oppression, or an absurd consequence. It will always, therefore, be presumed that the legislature intended exceptions to its language which would avoid results of this character. The reason of the law, in such cases, should prevail over its letter.”
Again, in French v. Edwards, 13 Wall. 506, 511, it says:
‘•There are, undoubtedly, many statutory requisitions intended for the guide of officers in the conduct of business devolved upon them which do not limit their power, or render its exercise in disregard of the requisitions ineffectual. Such, generally, are regulations designed to secure order, system,*656 and dispatcli in proceedings, and by a disregard of which the rights of parties interested cannot he injuriously affected. Provisions of this character are not usually regarded as mandatory, unless accompanied by negative words importing that the acts required shall not be done in any other manner or time than that designated. But when the requisitions prescribed aré intended for the protection of the citizen, and to prevent a sacrifice of his property, and by a disregard of which his rights might be and generally would be injuriously affected, they are not directory but mandatory. They must be followed or the acts will be invalid. The power of the officer in all such eases is limited by the manner and conditions prescribed for its exercise.”
In that case the statute in controversy was held to be mandatory; and so in the great case of Galpin v. Page, 18 Wall. 350, the same principle was applied in its relation to the jurisdiction of courts of special and limited authority; and, as is there and elsewhere abundantly shown, it is often applied in superior courts of general jurisdiction, where they are exercising special powers, not according to the course of the common law, by regular process and personal service in the usual form of common law or equity proceedings, but by seizure of property — as in attachment cases, for example — or some substituted process, or else where these special powers are exercised over a class of cases not within their ordinary jurisdiction, upon the performance of prescribed conditions made essential to the acquisition of the jurisdiction itself.
The case at bar does not, in my judgment, fall within any of these categories, and the mistake that is made in holding to a rigid and literal compliance with this requirement of the statute, that the copy of the record is to be entered “on the first day” of the next session of the court, is in supposing that it does, and that it is, therefore, a jurisdictional feature of the statute. We are not, in the exercise of our jurisdiction of removable causes, any more than in cases originally brought here, proceeding as a court of limited and special authority, ¡nor as a superior court of general jurisdiction, exercising powers which are not according to the course of the common law and its regular course of process and personal service, nor yet such a court taking jurisdiction over a class of eases not within our ordinary jurisdiction. But we are a court of general jurisdiction, with this subject-matter embraced within the ordinary scope of our powers, and we are not proceeding by extraordinary processes, as attachment ■or publication or the like, but strictly upon personal service in the ordinary way. If it be an attachment suit, the same thing may be said of it, except that we are in the same predicament as the state court, and are only exercising concurrently its jurisdiction, whether
The jurisdiction is conferred by the constitution, and is plenary and exhaustive. This act of congress has vitalized the constitutional grant and regulated the jurisdiction. The second section defines the jurisdiction in removal causes, prescribes the class of cases to which wo are authorized to apply it, and in itself contains no condition precedent or subsequent upon which its exercise depends. The third and seventh sections, relating to the matter in contention*here, are purely practice regulations by which a method of procedure is prescribed, and are not at all jurisdictional. This may be said, it seems to me, of all the sections to this act, except the first and second, and that clause of the seventh -which punishes the clerk of the state court for refusing a copy of the record, and confers jurisdiction of the offence. The framework of the statute indicates a purpose to define the whole civil jurisdiction of the court in the first two sections, and to regulate the practice in removal cases in the others; and to this were (perhaps subsequently) added in the eighth and ninth sections independent regulations applicable to all cases, whether originally brought here or removed. This is shown by the title to the act, which is instructive on this point. The whole statute must be looked to in construing any part, unquestionably; but then this obvious separation of subjects is equally as important and available as 'an indication of the intention we are seeking. Act March 8, 1875, (18 St. 470.)
We are, then, in the construction of this statute, authorized to treat it, not as one conferring extraordinary jurisdiction or prescribing extraordinary processes and methods of procedure, (except, perhaps, the eighth section, regulating substituted process,) but as one granting ordinary jurisdiction and regulating the practice applicable to it. There is, as the books disclose, a vast difference between the two kinds of statutes in the rules of construction to be applied, the one being strict and the other liberal,
Undoubtedly, in the matter of regulating suits, whether commenced here or brought here after being commenced elsewhere, congress can prescribe such conditions precedent for the exercise of the jurisdiction as it chooses; and if it has said that, as an inexorable rule, we shall not proceed in this case unless the record is filed on the first day of the term, we must obey it. But the statute does not say so explicitly, and it is purely a matter of construction. Being open for construction, the question is, shall it be construed strictly against the jurisdiction, or liberally in favor of it ? If it be a condition precedent, nothing can dispense with it, not even inevitable accident; and 'this seems to me an “absurd consequence,” considering the nature of the case, and the character and purposes of the jurisdiction, as declared by the constitution, and shown by the history connected with its place in that instrument. Grammatical analysis of the third section does not disclose any intention to attach a forfeiture of the jurisdiction toa failure to file the record on the first day; nor does the seventh sec-
But aside from this consideration this statute falls within the cases declaring the rules by which a statute shall he held to be directory. In Brewer v. Blougher, 14 Pet. 178, 198, it is said that it is undoubtedly the duty of the court to restrain the operation of a statute within narrower limits than its words import if the court is satisfied that the literal meaning of its language would extend to cases never designed to be embraced in it. And in Oates v. Nat. Bank, 100 U. S. 239, 214, Mr. Justice Harlan says that “a thing which is within the letter of the statute is not within the statute unless it be within the meaning of the makers.”
In Whitney v. Emmett, Bald. 303, 316, it is said:
“Laws are construed strictly to save a right or avoid a penalty. They are construed liberally to give a remedy or to carry into effect an object declared in the law. It is judicial legislation to confound the parts of a law which are merely directory as to acts to be done with those which prescribe acts as conditions precedent to the vesting of a right.”
“Where a limited jurisdiction is conferred by statute, the construction should be strict as to the extent of the jurisdiction, but liberal as to the mode of proceeding; and, where a statute prescribes a form of proceeding, a substantial and not literal compliance is all that is required.”
And so it was held in Heydon’s Case, 3 Rep. 7—
“To be the duty of the judges at all times to make such construction as should suppress the mischief or advance the remedy; putting down all subtle inventions for continuance of the mischief, et pro privato commodo, and adding force and life to the cure and remedy, according to the true intent of the makers of the act, pro bono publico.” Potter’s Dwarris on Statutes, (Ed. A. D. 1875,) 184.
The supreme court of Pennsylvania says:
“ It would not, perhaps, be easy to lay down any general rule as to when the provisions of a statute are merely directory, and when mandatory or imperative. Where the words are affirmative, and relate to the manner in which power or jurisdiction vested in a public officer or body is to be exercised, and not to the limits of the power or jurisdiction itself, they may and'often have been construed to be directory; .but negative words, which go to the power or jurisdiction itself, have never, that I am aware of, been brought within the category. A clause is directory when the provisions contain mere matter of direction and no more, but not so when they are followed by words of positive prohibition.” Bladen v. Philadelphia, 60 Pa. St. 464, 466; Norwegian Street Case, 81 Pa. St. 349.
Where a statute directs a person to do a thing at a particular time, without any negative words restraining him from doing it afterwards, or any expression from which such intent can be gathered, the naming of the time is directory, and not a limitation of authority. While, therefore, the duty may be performed at &■ subsequent time, and the action be valid, because time is not of the essence of the act, and is not a condition precedent to its validity, yet the statute should be obeyed, and the act done at the time specified. Hugg v. Camden, 39 N. J. L. 620. Where the object contemplated by the legislature cannot be carried into effect by another construction, there the prescribed time must be considered imperative; but when there is nothing indi-eating that the exact time is essential, it should be considered as directory. Colt v. Eves, 12 Conn. 243, 254. Accidents may happen which would defeat the authority if it cannot be exercised after the time mentioned. The naming the time must be, therefore, considered as directory and not a limitation of authority. Pond v. Negus, 3 Mass. 230; Lowell v. Hadley, 8 Met. 180. Neither the nature of the act to be performed, nor the language used by the
These,are some of the cases indicating the principle governing the courts in this matter, and the supreme court of the United States has frequently recognized and enforced these rules in the construction of statutes. Speake v. U. S. 9 Cranch, 28; U. S. v. Vanzant, 11 Wheat. 184; U. S. v. Dandridge, 12 Wheat. 81; Sup'rs v. U. S. 4 Wall. 435. See, also, Miller v. Gages, 4 McL. 436.
In Jackson v. Wiseburn, 5 Wend. 136, it is said that it is the ordinary course of the court, upon cause shown, to enlarge the time to plead or other time prescribed for any purpose by the rules of prae-tice of the court. The rules of practice of the court, being established by the court, may be made to yield to circumstances to promote the ends of justice. But not so as to a statute: it is unbending, requiring implicit obedience as well from the court as its suitors, and the court possesses no dispensing power. But in Kelly v. Moody, 7 Hill. 156, it was said that defaults may be set aside in cases where the practice is regulated by statute, as well as where it depends on the rules of the court. Indeed, our statutes of jeofails require amendments or acts to be done nunc pro tunc, in order to save the rights of the parties, without any distinction of that character.- We have several acts of congress as peremptory as the one we are considering which require this. A section of the Revised Statutes says—
“ That no summons, writ, declaration, return, process, judgment, or other proceeding in civil causes, in any court of the United States, shall he abated, arrested, quashed, or reversed for any defect or waiit of form; but such court shall proeeed-and give judgment according as the right of the cause and mat*663 ter in law shall appear to it, witlurat regarding any such defect or want' of form, * * * and may at any time permit either of the parties to amend any defect in the process or pleadings, upon such conditions as it shall, in its discretion and by it rules, prescribe.” Rev. St. § 954.
This section, both in letter and spirit, clearly confers the power and makes it the duty of the courts to cure such defects as this unless the removal statute is so imperative as to forbid it. Mr. Chitty says that some decisions have, on the subject of amendment, made a distinction between rules of court and statutory rides of practice, but he shows that they do not go upon any want of power, but on the determination of the judges to deny the amendment in general- so that obedience to the statute may be enforced. 3 Chit. Pr. 54. Certainly, if this important proceeding is to bo cut off from ail amendments because the mode of proceeding is regulated by statute, it will be very much restricted. At common law, or under the English statute of jeofails, a writ of error was not amendable. 1 Comyn’s Dig. tit. “Amendment, 2 C, 4,” p. 614. And prior to the act of June 1,1872, the power to amend it was much restricted with us, but that act enlarged the power of amendment, and conferred on the circuit and district courts further power to amend all process returnable before them. 17 St. 197. And this power is still further enlarged by another section of the Revised Statutes, which says:
“Any circuit or district court may at any time, in its discretion, and upon sueli terms as it may deem just, allow an amendment of any process, returnable to or before it, where the defect has not prejudiced, and the amendment will not injure, the party against whom such process issues.” Rev. St. § 948.
And it was held to cure a writ of error from the district to the circuit court returnable to the first Monday of December instead of the first Monday of November, as it should have been, and this, even though the transcript was not filed before the commencement of the term to which it was properly returnable, the court saying the defect was one of form. Semmes v. U. S. 91 U. S. 21, 24.
Hence, if the filing of the transcript in this ease, by analogy to a writ of error, can be treated as process by which we obtain jurisdiction of removable causes — and this is the most favorable view for the motion to remand — it is clearly amendable under this section of the Revised Statutes by ignoring the defect, or allowing it to be filed nunc pro tune, as was done where a case was wrongly entitled. Fourth N. B. v. Neyhardt, 13 Blatchf. 393. But that it is not process in that sense I think is clear. It is the filing of the petition and bond in the state court that operates to transfer the case. Taylor v.
The eases, commencing with Villabolos v. U. S. 6 How. 81, and U. S. v. Curry, Id. 106, and running numerously through the reports, including Mussina v. Cavazos, 6 Wall. 355, and Edmonson v. Bloomshire, 7 Wall. 306, relating to the exceedingly technical rules of the supreme court governing the acquisition of jurisdiction by that court through a writ of error or appeal by the filing of the transcript, furnish the strongest analogy in favor of the motion to remand. But, as stated by Mr. Justice Miller in the last-mentioned case, the intelligible ground of these decisions is that the writ of error and the appeal are the foundations of the jurisdiction, without which there is no right to revise the action of the inferior court, and that the writ of error, like all other common-law writs, becomes functus officio unless some return is made to it during the.term of the court to which it is returnable. A careful comparison of the language of the acts on which these decisions are made with that of the one we are now considering shows that they are not at all alike in respect of this matter of prescribing the time. Neither the act of 1789 (1 St. 84, § 22) nor of March 3, 1803, (2 St. 244, § 2,) prescribe any time for filing the writ of error or the transcript. They only adopt the common-law mode of proceeding known as a writ of error, which was always returnable to the term of the appellate court next following the date of the writ, and it was here of the essence of the writ that it should be so returnable in order that the court should acquire jurisdiction. But it will be seen, from an examination of all these cases in the supreme court, that a default did not have any such effect as that accompanying a failure to file a transcript in these removal causes if the time is held under the act to be essential. A new writ of error could be sued out, notwithstanding the miscarriage of the first, at any time within the time prescribed by the statute of limitations, and the case be thus carried to the appellate court. The jurisdiction referred to by Mr. Justice Miller as founded on .the writ of error that is lost by the failure to file the writ and transcript is not that over the subject-matter, but that over the parties, the writ and the citation being necessary to bring them into the supreme court. Here, however, the statute does, not call for any process, or prescribe any, to give this court jurisdiction of the parties to a removed cause, and we are not, as once before remarked, acting as an appellate or other supervisory tribunal into which process is necessary to bring the parties. They are brought into the state court by process, and
It may be said that by a like construction of another clause in tho same section of this statute the time for filing the petition and bond in the state court may be enlarged, which is not permissible. Gibson v. Johnson, Pot. 44. But the distinction is obvious; for the intention is there manifest that tho petition must be filed before trial actually commenced, and before or at the term at which the cause could be first tried, and not after. Tho phraseology necessarily shows that this provision of the statute, is imperative, because it is not prescribing a precise time within which a thing must be done, but a particular condition or status of the case which will entitle it to be done at all. There is not here a direction for filing a petition within a certain time, so much as a description of the class of cases in which a removal may bo had. The idea of time is not tho leading one, nor of the nature or essence of the particular subject, for it may be variable according to many circumstances; but the reference to time is only fox the purpose of describing the status of the case that is to be removed. It is not so in the matter of filing the transcript; and the
The authority of adjudicated cases is so conflicting that a ruling either way on this ground of the motion to remain would find support, and I have, therefore, endeavored to get at the governing principle, quite independently of the cases more or less closely allied to the one we have in hand. Considering that the clause we are construing has been in all the acts from 1789 to the present time, there are remarkably few cases on the point to be found in the reports. The only expression of the supreme court is found in the Removal Cases, 100 U. S. 457, at p. 475. By fault of the clerk of the state court the removing party did not file the transcript on the first day, but did on the second, and the court overruled the objection, saying:
““While the act of congress requires security that the transcript shall be filed on the first day, it nowhere appears that the circuit court is to be deprived of its jurisdiction if by accident the party is delayed until a later day in the term. If the circuit court, for good cause shown, accepts the transfer after the day, and during the term, its jurisdiction will, as a general rule, be complete and tile removal properly effected.”
This seems to leave the question to the discretion of this court to either accept or decline jurisdiction; but, of course, that discretion is to be regulated by the rules of law applicable to the proper construction of the statute and correct practice under it. In the cases ■already cited it will appear that there is much more latitude allowed iwhere the delay is caused by the act of an official than where it is caused by the act of the party himself. 2 Am. L. Beg. (N. S.) 409,
Embarrassed as I have been by this conflict of authority, I am satisfied, for the reasons I have stated, that the jurisdiction should not be defeated by an excusable failure to file the transcript on the' first day, notwithstanding the seemingly pei’emptory language of the statute, which, I think, in that respect is only directory. In this case the reasons given for not filing in time seem to me excusable, in view of the exceedingly brief delay. But I think proper to say, in the light of the authorities consulted, that I am not prepared to hold that every negligence should be excused, and the time enlarged, in all cases where no special injury to the other side appears, but that the true rule seems to be that the statute must be strictly obeyed, and a failure to comply with it must be reasonably accounted for, before the court will exercise its power to enlarge the time. Inexcusable negligence in itself imports an injury to the adverse party. And while the statute may be held to be directory merely, and not mandatory, for the purposes I have stated, it does not follow that it is nugatory in that regard, or that the courts can ignore its plain requirement that the transcript shall be promptly filed on the first day of the term.
The second ground for the motion to remand presents as much difficulty as the one just determined, and raises several important qiiestions of practice under this statute. It must be conceded, as it is, that in a proper case, and in a proper mode, a minor defendant or plaintiff may remove his controversy into this court, as other parties may, for the act of congress makes no distinction between cases where the parties, or some of them, are infants, and where they are sui juris, but confers the right on any party to a suit coming within the jurisdiction; and it cannot be supposed, therefore, that suits by or against infants are excluded from the operation of the act. But how the removal is to be made in these cases is not prescribed, nor has it been indicated by any case or text-writer, so far as I can find from anything brought to my attention by counsel or developed by my own investigations. That the jurisdiction depends on the citizenship of the infant and hot that of the next friend, where he is a plaintiff, seems established. Williams v. Ritchey, 3 Dill. 406. The same is true of a married woman as plaintiff. Wormley v. Wormley, 8 Wheat. 451; Ruckman v. Palisade Co. 1 Fed. Rep. 367.
Actions by and against infants, or rather those actions which concern their property, are so much changed by state legislation that attention must be given to rights thus acquired and distinctions thus established, or we are likely to get into confusion in administering a jurisprudence itself destitute of all statutory regulations on that subject. From 'the beginning these removal acts have obviated all necessity for process in this court by requiring the defendant, as a condition of his right of removal, to enter an appearance in this court. But, as to infant defendants, this cannot bo done, for they cannot waive process or enter an appearance, nor can it be done without service of process by any one for them. After process served, their appearance may be entered for them, but the service is a prerequisite to any authority in that behalf. In original cases in the courts of the United States, sitting in equity, there can be no defence otherwise than by guardian ad litem, and one cannot be appointed, nor the infant bound, until service of process upon him. Equity Rule 87; Bank of the U. S. v. Ritchie, 8 Pet. 128; O’Hara v. MacGonnell, 93 U. S. 150; N. Y. Life Ins. Co. v. Bangs, 13 Cent. L. J. 88; S. C. to be reported in 103 U. S.; Carrington v. Brents, 1 McL. 174.
As I understand the chancery practice to which wo are bound by equity rules 91 and 87, an infant always sues by his next friend and defends by his guardian ad litem, where he is personally a necessary
Let us look at the case as it stood in the state court, and see what were the rights of the plaintiff in this matter of process as against this infant defendant; for it will be seen that the methods of procedure in the two courts as to substituted process are entirely different, particularly as to infant defendants. Generally, in the state equity courts, any non-resident defendant can be brought into court by simple publication in a newspaper, according to the terms of the statute. T. & S. Code, (Tenn.) §§ 4352-4859; 1 Meigs’Dig. (2d Ed.) § 605, p. 759, and cases cited. In attachment cases the writ must be issued and levied, and also notice given by publication. T. & S. Code, §§ 3518-8526; 1 Meigs’ Dig. § 275, p. 272; Id. § 605, pin 761, 762. In suits for the administration of estates, solvent and Insolvent; in those for the sale or partition of lands of persons under disability; in actions of ejectment, or other proceedings affecting their estates, — there are special regulations in regard to infant defendants whose lands are to be sold for the ancestor’s debts, or whose estates are to be divided or converted into money for their own benefit or otherwise affected by the litigation. .But it will be found that there is no uniformity whatever observed in these regulations, and it depends upon the character of the proceeding in each case, and often on the particular court in which it is pending. Sometimes, and perhaps generally, service of process upon the regular guardian alone, whether the infant be resident or nonresident, whether the guardian be named as a party to the bill or not, and whether it be a personal action or one solely in relation to the property of the infant, will suffice to hind the infant and his property. But this is not always so, and sometimes both must he served; and when specially required, as it often is, the infant must be served personally, whether he has a guardian or not. Whore there is no regular guardian, service directly upon the infant must be had and a guardian ad liiem appointed; but in nearly all cases, I believe, provision is made for substituted process by publication where the infant is non-resident and has no regular guardian within the state; but in one instance, at least, provision is made for a sale of his land where he is non-resident, without any substituted process or appearance for him whatever, upon a return of two nihils. T. & S. Code, (Tenn.) §§ 2257, 2260, 2261, 2888, 2880, 2516, 2517, 2829, 3257, 3264, 3325, 3652, 4099, subsoc. 7, § 4420, subsec. 4; 1 Meigs’ Dig. § 512, p. 512; Id. § 604, p. 759; 2 King’s Dig. (2d Ed.) §§
Having now determined that in this case — and I wish to confine the ruling to those. cases where the infant may be bound by service of process alone upon the regular guardian, and leave others to be determined as they arise — the infant defendant would have been bound in the state court, without the service of any process, by the appearance in her behalf of her regular guardian, let us inquire what effect is produced by removal to this court under the peculiar facts of this case. I have shown that in an original case in this court service of process upon a regular guardian, or appearance by him without service upon the infant, would bo ineffectual; the only substituted process known to the federal statutes being that under section 8 of the act of March 3, 1875, (18 St. 472.) That section, as I understand it, applies only to suits “commenced in any circuit court of the United States,” and does not apply to removed causes, and for the obvious reason that as to those causes the act contemplates an appearance here voluntarily of the removing defendant, and no process is necessary. But this would altogether defeat the right of an infant defendant who cannot appear voluntarily to remove his case, unless some one can appear for him without process, or wo resort to the state process to bring him in, for no federal process can reach him outside of the district where he actually resides. We cannot issue state process from this court, whether it be by writ or publication ; and therefore it seems to me necessary to hold that where there is an infant defendant there can be no removal until, by effectual process, he has been first brought into the state court and some one there authorized to appear for him in that court. If such person may appear there without process and bind the infant, he may appear here without process and bind him to a like extent; but there must bo a preliminary appearance in the state court to supply the want of process there, so that that court should have the infant bound to answer the suit, and he be brought here with that bond upon him; for we cannot supply it, nor substitute one for it, nor can he under the law voluntarily forego or waive it, and it is absolutely
If it were not for this necessity of having the infant defendant bound by process or an authorized appearance, as to which the law is always strictly to be pursued, I should not hesitate to hold that a nest friend could file the petition and bond for removal, because, although an infant defends by his guardian ad litem, the functions of that representative are strictly defensive, and whenever the infant becomes an actor, as by filing a cross-bill or petition, he proceeds by next friend, usually the guardian ad litem, acting in that capacity in that particular suit; and even a regular guardian, with power to sue, proceeds or is taken technically as the next friend. 1 Danl. Ch. Pr. 68, 69, 77, (5th Ed.;) 2 Danl. 1595. Where the regular guardian has power, under the statute appointing him, to bring suits — as he ha,s in Tennessee — of course he can act in that capacity, and it is wholly immaterial whether he is called guardian or next friend, and I have no doubt such a guardian may file the petition to remove. In re Brocklebank, 6 Ch. Div. 358, it was held an infant might institute bankruptcy proceedings in his own name, and it is a general rule he may, by next friend, pursue any remedy others have. But it is insisted that a guardian ad litem cannot do it, because—
“ He is to defend the suit in the court from which he derives his authority, according to the rules and principles of law applicable to the ease, as administered in that tribunal, and in conformity with the ordinary mode of trial and practice of the court in similar cases. It is not within the scope of his authority or duty to change the tribunal for the trial, or that the decision shall be upon principles other than those applicable to like eases in the forum in which the suit is pending, His special and restricted powers admit of the exercise of no such discretion.” Hannum’s Heirs v. Wallace, 9 Humph. 129, 136.
This was said in denial of the power to' submit to arbitration, and
The suit, when properly removed, proceeds under the direct command of the statute “in the same manner as if it had originally commenced in the said circuit court.” Act March 3, 1875, (18 St. 471, § 3.) It would, therefore, be entirely competent for this court, after such a removal, to appoint a guardian ad litem and proceed with the case; for although the jurisdiction of the federal courts of equity does not extend to the care and protection of infants and their property generally, as do other courts of equity, those powers belonging to the states, they have abundant power to bind them and protect them in cases and controversies within their jurisdiction. N. Y. Life Ins. Co. v. Bangs, supra. My best judgment in these matters of practice may be thus summarized:
1. An infant defendant, where the case is removable, may remove his suit into the federal court by his regular guardian, guardian ad litem, or next friend, who may file the petition and give the bond.
2. But this cannot be done until proper steps have been taken by the service of process, either directly or by substitution, to bring the infant defendant into the state court according to the requirements
It is' insisted by the learned counsel for the petitioner here that McKenna, having since he filed the petition become the regular guardian, may ratify what he has done as next friend, and thus perfect the removal. 'Potential as the principle of ratification sometimes is, I do not think it can be safely applied to supply a want of compliance with those conditions prescribed by the statutory or municipal law as a prerequisite for obtaining jurisdiction over the person or property of an infant. If the infant could herself ratify, it might be different. No case cited justifies the argument in favor of the doctrine. McKenna was not a guardian, either regular or ad litem,' at the time of filing this petition; no process had been served or substituted by publication; and'the state court had obtained no jurisdiction over the infant when he came in and as next friend sought to remove the case in her behalf. The merely filing the bill and naming her as defendant did not make her a party. She had no power to voluntarily appear and waive process, and no one was authorized to appear for her. Subsequently he did obtain the necessary authority by his appointment as guardian in a case like this, under the state statutes, to appear voluntarily, for it is a case, I think, where service of process on the guardian alone binds the infant; and where that is the ease I do not see why he may not voluntarily so appear without process. But these statutes only operate in the state court, and can confer no power to voluntarily appear in a federal court where the notion of a voluntary appearance by a guardian or any one else to bind an infant is wholly unknown. The only theory on which it could be permitted is that we are here, pro hae vice, in these removal causes, a state court, with the same powers under these state statutes that those courts possess. I think this is not the theory of the act of congress, but the one I have indicated, which is that the defendant comes from the state court only after he is properly there by an appearance in that court. Besides this, in a former part of this, opinion we have seen how strictly we are bound to the conditions of the removal act in order to acquire jurisdiction; and it seems to me plain that the petitioner cannot depend on a subsequently-acquired authority to aid the petition for removal.
It is further insisted that this is a case arising under the constitution and laws of the United States and that we have jurisdiction here irrespective of citizenship, and for that reason this case should not
This petition for removal makes no mention of that ground of jurisdiction, but is based wholly on the ground of difference in citizenship. The character of this suit appears by the bill filed in the state court; but while we may look to that in aid of the allegations contained in the petition for removal, we cannot depend wholly on it to furnish the jurisdictional averments. The petition itself, like all other records in this court, must show by proper averments the jurisdictional facts, and the allegata and probata must correspond. This petition should have averred at least that it was a case “arising under the constitution and laws of the United States.” Ins. Co. v. Pechner, 95 U. S. 183; Bible So. v. Grove, 101 U. S. 610; Trafton v. Noagues, 4 Sawy. 179; Keith v. Levi, 1 McC. 343; S. C. 2 Fed. Rep. 743; Dill. Rem. (2d Ed.) § 73, p. 89; Id. § 70 et seq. This is the rule in original cases where the declaration or other pleading must contain these averments; and I think it applies here. Ex parte Smith, 94 U. S. 455. In Ins. Co. v Pechner, supra, it is said that the “petition for removal, when filed, becomes a part of the record in the cause. It should state facts which, taken in connection with such as already appear, entitle him to the transfer. ” It would appear from expressions in some of the cases that we may look to the record of the state court, or to the removal petition, for the jurisdictional facts; but I do not find it any where decided that, when a case presented by the petition for removal is predicated on the citizenship, we may retain it if it appears by the record in the state court to be one arising under the constitution and laws of the United States. Dill. Rem. § 70, 71. Orderly proceedings require that one who seeks, by petition or other pleadings, any remedy or redress depending upon statutory grounds prescribed as conditions to that remedy, should state the facts upon which his petition is founded, and not require
Application is made to amend the petition by inserting the necessary averment that the case is one arising under the constitution and laws of the United States, and by allegations of the facts showing that
I should, therefore, allow the application to amend, and retain the jurisdiction, but it does not advance the case at all, and, for the reason that we have the same difficulty as before in regard to the service of process upon this infant defendant, who must be brought into court in any event, and we have no method of getting her here under our practice. We cannot send a subpoena to Kentucky for her, nor can her guardian voluntarily appear, without personal service, according to our practice. He may do that in the state court, and her appearance may be compelled in that court by publication, but not here, for the reasons already stated in this opinion.' Where a suit is brought in a federal court, and an indispensable party is out of the jurisdiction, it must be dismissed; but surely that is not to be the result of the attempted removal in this case; and yet I see no other, if the case has been already removed to this court. We must, ex necessitate ret, resort to the law of the state upon the subject of process against infant defendants, or this case cannot progress beyond the point it was at the time of the attempted removal, and this resort can only be had by remanding it to the state court for that purpose.
It has occurred to me that, inasmuch as the eighth section of the act of March 3, 1875, provides a substituted process by publication and notice to bring in absent defendants in certain exceptional cases ■where the suit is commenced in this court, we might apply it in this case, as it is of the character provided for, although it was not com.menced but removed here, because the third section of the same act says that after a case has been removed here it shall proceed in the same manner as if it had been originally commenced here. But, on mature reflection, I am satisfied this is not a sound construction of the statute, and produces unnecessary confusion in the practice. These provisions for substituted process are not favored, and are nowhere more strictly construed than by the federal courts; and it would be a stretch of judicial power to permit it in removed causes, when the act providing it in terms confines it to those commenced in the federal courts. Again, while this would remove the difficulty as
This would dispose of this motion without a consideration of the question, so much argued, as to the citizenship of Maud B. McKenna, the infant defendant, who cannot, it is urged, have a separate citizenship from her father, who is, confessedly, a citizen of Tennessee. If this be so we could take no jurisdiction on account of difference of citizenship between the plaintiff and defendant. But as wo could on account of the subject-matter, I would pass this perplexing question without the expression of any opinion, but for the fact that my judgment is not final, and it is proper that I should dispose of all the questions properly raised; and also it is proper, in view of any subsequent proceedings for removal. As it is, I shall do no more than intimate my judgment on that question, although I have given it a very careful consideration. I am satisfied that an infant child can acquire a separate citizenship or domicile from that of its father, if not for all purposes of nationality and change of status in its relations to the statutes of descents and distribution, certainly to the extent of acquiring a forum, broadly speaking, in the courts of the United States or of another state than that of which its father is a citizen. Or, as I may express it, for the purposes of judicial jurisdiction over the person, property, and right to sue and be sued of an infapt, it may have a different citizenship from that of its father. It can acquire this only by that emancipation by the father which relinquishes his parental control over the subject. On principle I do not see why, if a father may of his own volition and arbitrarily change a child’s domicile in all that the term implies, except, perhaps, that of its nationality, by simply changing his own domicile, he may not by other arbitrary acts do
However these questions would have to be answered where there was an entire absence of legislation, or in international tribunals, there can be no doubt that our states, in their relation to each other, have control over the subject of emancipation of minors from parental control to the fullest extent, .and that each may prescribe the rules to govern it and limit or extend its effects. Nothing was more
“A father * * * may, by deed executed in his life-time, or by last will and testament in writing from time to time, and in such manner and form as he thinks fit, dispose of, the custody and tuition of any legitimate child under the age of 21 years and unmarried, * * * during the minority of said child, or for a less time.” T. & S. Code, § 2492.
—A deed or will should appoint a citizen of Kentucky such guardian, I have no doubt it would operate to make the child a citizen of Kentucky by necessary implication, whether it would or not for all purposes change the rule that the last domicile of the father constitutes the domicile of the child. And, perhaps, there would be the same result if the county court should bind an abandoned child to a citizen of another state. T. & S. Code, § 2549.
Why cannot a person have two domiciles — one for political citizenship, and another for purposes of succession ? And, as I understand the subject, there is respectable authority that ho may. The supreme court has held that, ex necessitate rei, a wife may acquire a different domicile from that of the husband, and the same necessity may sometime exist, I should think, in the case of a child. Cheever v. Wilson, 9 Wall. 108. I am aware that our courts have decided that there is a distinction between residence, however long-continued, and citizenship, in the purview of our constitution and laws, and that they apply substantially the same tests applied to determine questions of domicile in determining questions of citizenship; but I know of no case that holds that the person must denude himself so entirely of his former domicile in one state that the laws of succession in the new state must attach to him in order to constitute a change of citizenship, and on the principles laid down by the authorities I have consulted on the subject of two domiciles, I do not know why this most i'igid test of domicile should be insisted on. I should, of course, concede that the person can have only one domicile or residence as pertaining to his inter state right of suing or being sued in the federal
I do not overlook the fact urged in argument that the fourteenth amendment to the constitution has declared that “all persons born or naturalized in the United States and subject to the jurisdiction thereof are citizens of the United States wherein they reside.” Const, art, 14.
But I do not understand that this has enlarged the judicial power of the United States under article 3, § 2, so as to include controversies between persons who would be citizens of the same state, as theretofore understood, but who are now simply residents of different states, as contradistinguished from persons domiciled in different states. But we have the same tests of citizenship now as before the amendment. Robertson v. Cease, 97 U. S. 646, 649; Nat. Bank v. Teal, 5 Fed. Rep. 503, 505. I think these views will find support in the following authorities, and the cases cited by .them: 2 Kent, (12th Ed.) 233, note c, 225, 226, note 1, (d,) 430, note 1, 431, 49, 71, 72; Schoul. Dom. Rel. part 3, passim, pp. 312, 412, 452, 442, 393, 394, 314, 367, 372, 591, 598; Story, Conf. L. (5th Ed.) passim, §§ 39, 49, § 46, and note 4, §§ 531, 543, § 480, et seq., 492 et seq., Phil. Dom. passim, c. 3, c. 7; Westl. Priv. Int. L. §§ 35, 36, 37, 34, 316; Whart. Conf. L. (2d Ed.) passim, §§ 8, 10, 10a, c. 2, passim, §§ 24, 29, 41-43, 55-66, 67-77, 81, 82, 396, 704, 720; Bump, Fed. Proc. 130, 185, 217; Dill. Rem. (2d Ed.) 67, and notes; Somerville v. Somerville, 5 Ves. 750, (Perkin’s Ed.) and notes; Allen v. Thomason, 11 Humph. 535; Cloud v. Hamilton, Id. 104; Ross v. Ross, 129 Mass. 243; Tirrell v. Bacon, 3 Fed. Rep. 62; Collinson v. Teal, 4 Sawy. 241; Holmes v. Railroad Co. 5 Fed. Rep. 523, 526. And see 11 Cent. L. J. 421; 12 Cent. L. J. 51,
I do not treat this subject with a more exact and critical observation of the authorities, because, while I am inclined to think that an infant child may, at least to the extent of conferring the right to sue and be sued in the federal courts, with the consent of its father, ac.quire in the father’s life-time such a domicile in another state than -that of the father’s domicile as will make it a citizen of that state, I
Bemand the cause.
Consult, also, Henderson v. U. S. 4 Ct. Cl. 75, 83; Limestone Co. v. Rather, 48 Ala. 440; McKune v. Weller, 11 Cal. 49; Wheeler v. Chicago, 24 Ill. 105; State v. Baltimore Co. 29 Md. 517, 522; Stayton v. Huling, 7 Ind. 144; Hooker v. Young, 5 Cow. 269; Dutton v. Kelsey, 2 Wend. 615; Caldwell v. Albany, 9 Paige, 574; Seymour v. Judd, 2 N. Y. 464; Hill v. Draper, 10 Barb. 454, 480; People v. Schermerhorn, 19 Barb. 540; Barnes v. Badger, 41 Barb. 98; Potter’s Dwarris, St. 222, and notes; Id. 184; Sedgw. St. &. Const. L. 322, and notes; Id. 368; 2 Am. Law Reg. (N. S.) 409, and note; Cooley, Const. Lim. 77; 1 Smith, Lead. Cas. 687; 2 Ky. Law Rep. (March, 1881,) 166.