Cobb v. Globe Mut. Life Ins.

HUGHES, District Judge. The constitution of the United States extends the judicial power of the United States to “all controversies between citizens of different states,” so far as it shall be vested by act of congress in the United States courts. Section 3 of the judiciary act of congress of March 3, 1875. provides that any suit in a state court in which there shall be a controversy between citizens of different states,' and in which the value in controversy exceeds $500, may be removed into the circuit court of the United States for the district where the suit is pending, on the petition of any party to such suit. The act directs, that if such party files his petition for removal in the state court at the term at which the suit could be first tried and before the trial, and also files therewith a bond, with sufficient security, for his entering in said United States circuit court, on the first day of its then next, session, a copy of the record in such suit, and for paying all costs that may be awarded by the said United States circuit court if its decision should be against him — it shall then be the duty of the [1127] state court to accept said petition and bond, and proceed no further in such suit It further directs that, on the said copy being entered as aforesaid in said United States circuit court, the cause shall then proceed in the same manner as if it had been originally commenced in the said United States circuit court. Section 5 provides, that if it shall at any time appear to the satisfaction of said United States circuit court, etc., that such suit does not really and substantially involve a controversy properly within its jurisdiction, or that the parties to said suit have been improperly or collusively made or joined for the purpose of creating a ease cognizable or removable under this act, the United States circuit court shall proceed no further therein, but shall dismiss the suit, or remand it to the court from which it was removed. Section 7 provides that in the event that the session of the United States circuit court held next after the filing, in the state court, of the petition and bond for removal, should commence earlier than twenty days thereafter, then the party obtaining the removal may have twenty days within which to present the copy of the record to the said United States circuit court. This is the latest enactment of congress on the subject and revises all previous acts, and repeals them so far as they are inconsistent with its provisions. It will be seen that the constitution of the United States gives either party to a controversy, in which the parties are residents of different states, the privilege of having his rights determined by a court of the United States; and gives congress the authority to prescribe, by law, how and 'under what conditions that right may be exercised, in those cases where the suit has been brought in a state court. Section 3 of the judiciary act of 1S75 makes the mere filing in the state court, of the petition and the bond, all that is necessary to stay the proceedings of the state court, and makes it “the duty of the state court,” on this filing, to suspend its proceedings. Section 5. in as plain terms as the English language affords, gives to the United States circuit court complete jurisdiction to determine whether the suit was one that could be properly removed; and to decide, after making such determination, what to do with the suit; whether to proceed in it, or to remand it to the state court, or to dismiss it outright. Such is the spirit, such the language, such the intention, and such the force and effect of the act ->f congress of March 3, 1S75 (IS Stat. 470-473), which being passed in pursuance of the paramount organic law, is thereby, as to this particular subject, paramount to any law of state enactment or adoption, relating to the jurisdiction of the state court. By the filing of the petition and bond in the state court, showing that the controversy is one “between citizens of different states,” the jurisdiction of the state court from that moment ceases, and all that that court may do in the matter afterwards is coram non judice, null and void. The question of the sufficiency of the bond itself, the-competency of the petition, the validity of the removal, and each and all questions arising upon the petition, are taken away by this law from the state court, and reserved by section 5 for the United States circuit court, to be passed upon in the exercise of the unembarrassed and undivided jurisdiction, which this act gives it, under the authority of the constitution, over all “controversies between citizens of different states.” Practically, the action of the corporation court of Norfolk defeated the constitutional right to which the defendant company in this suit was entitled, — to have its controversy tried and determined in a federal court. The motion for removal on the 18th of September, accompanied by petition and, bond, was overruled by that court, although it was in time, being made at the term of the state court “at which it would be first tried, and before the trial.” I suppose that court acted on some law of congress relating; to removals of suits, of prior date to the act of 1S75 now in force. The mere fact that counsel not regularly employed, and acting for the regular counsel, who was sick in another city, had moved for a continuance on or about the first day of the term, had no effect in law on a question of constitutional right, and could not deprive the client of the moving counsel of his right to avail himself of the privilege of removal which he still had upon filing petition and bond at that term, and before a trial. The effect of the refusal' of the state court to allow the removal though, nil in law, yet practically resulted in putting the defendant to the care and labor and expense of preparing for and going through &. trial, and afterwards of securing an appeal, to the appellate state court, from the decision against him of the corporation court, of Norfolk. The defendant by counsel, in argument, avers that in consequence of being thus preoccupied and engaged with the defence and appeal, it neglected to file a copy of the record of the state court in this court within the twenty days prescribed by the judiciary' act of 1S75, § 5. The record of the state court was not filed, either on the 1st of October, which was the commencement of the term of this court at Richmond, or within twenty days from the 18th of September in the court at Richmond, or in this court on the first day of its fall term at Norfolk, which was-the 5th of November. Not having been filed within the time allowed by law, the suit lias-not been removed to this court. I will say a word passim as to the place to-which the suit should have been removed. The suit having been brought in the state-court at Norfolk, the proper place to which it should have been removed was to the United States circuit court at Norfolk; and the proper time at which to file the record [1128] there was at the November term, which commenced on the 5th day of that month. The case was not properly removable to the United States circuit court at Richmond, the fall term of which began on the 1st of October. The plaintiff in the suit had a right to have the suit heard in the United States circuit court at the place at which it was brought, if a United States circuit court was held there; and it would have been erroneous for the defendant to have removed it to the United States circuit court at Richmond. The copy of the record of the state court not having been filed in the United States circuit court at Norfolk before the first day of its November term, nor the defendant’s appearance entered there on that day, it follows that the suit has not been removed in the manner prescribed by the judiciary act of 1875, and this court is. therefore, without jurisdiction to entertain or proceed in it. The fact that the defendant lost his right of removal in consequence of the action of the state court, cannot operate in any way to confer upon this court a jurisdiction which was not secured to it by a compliance, on defendant’s part, with the requirements of the act of 1S75. He should have filed his record and entered his appearance on the first day of the November term of this court at Norfolk, independently of and notwithstanding the action of the state court. It is to be regretted that the defendant has lost a constitutional right; but there is no power of redress lodged in this court under the circumstances attending this case. The right of choosing the forum is given by the constitution and- laws to either party to the controversy. It is the will of the party, expressed in tlie manner prescribed by law, which determines the forum; and his expression of that will ought not to be treated by the state court as an act invidious towards itself. Though in form the party chooses between courts, his choice is really a preference between a jury selected, as in the United States court, from a large district of country, and a jury selected, as in the state ■court, from a single county or towm. It is •the will of the party to the suit, I repeat, which determines the forum which shall try and decide the controversy. Unless that will is expressed to the contrary, the state court, has full jurisdiction of the suit and of all questions incidental to it. After its expression, this full jurisdiction passes by the will of the petitioner, and not by any seeking of the federal court, to the federal forum. The federal court has then no more power to decline the jurisdiction than the state court to retain it. Nothing could be more unseemly than a struggle between the two courts for a jurisdiction which the law and constitution of the land makes subject alone to the bona fide volition of either party to the controversy. For a long time congress gave this right to the non-resident defendant alone— not exhausting the power and discretion intrusted to it by the national constitution. Now, however, that right is given to “either party” (18 Stat 471. § 2,) to a controversy between citizens of different states, whether resident or non-resident, whether plaintiff or defendant. The enlargement thus of this right by congress is in pursuance of an express provision of the national constitution as it came from its illustrious framers in 17S7, and is not a just ground of criticism or complaint by any state court The motion to quash the writ of certiorari and to dismiss defendant’s petition is therefore granted.