Crowley v. Southern Ry. Co.

JONES, District Judge (after stating the facts). The decision of the Supreme Court of Alabama, in Ex parte Birmingham & Atlantic Railway Company, 42 South. 118, declaring the act unconstitutional which sought to establish the Southern judicial division of the circuit court of St. Clair county at Pell City, is conclusive, [853] in this court, that no circuit court of St. Clair county was ever authorized to be held at Pell City. Everything attempted to be done under that act at Pell City is a mere nullity. That decision also establishes that there was no such office as that of deputy clerk of the circuit court of St. Clair county at Pell City. What Smith did under that act cannot be upheld as the acts of a de facto officer, because there néver was any de jure office of deputy clerk of the circuit court of St. Clair county at Pell City. Norton v. Shelby County, 118 U. S. 425, 6 Sup. Ct. 1121, 30 L. Ed. 178. Besides, if it could be admitted that Smith was deputy clerk of the legal court of St. Clair county, his acts in the premises at Pell City would be entirely ineffective to institute a suit in the circuit court of St. Clair, since the summons and complaint have never been in the clerk’s office of that court, or in any wise brought to its attention or acted on by it. Under the laws of Alabama, no suit at law is instituted or commenced in any court of the state unless the summons and complaint are filed in the office of the clerk of the' court in which the suit is sought to be instituted, at the place where the law requires the clerk to keep his office. The act constituting the Southern division of the circuit court of St. Clair county at Pell City being unconstitutional, there was no authority for filing the summons and complaint with Smith or anybody else at Pell City. The issue of the summons to appear before a court or at a time not authorized by law was a nullity, and so was the service of the summons. What was done in this matter at Pell City was as ineffectual to institute a suit in the real circuit court of St. Clair county as if the plaintiff had filed the summons and complaint with some merchant at Pell City and procured him to hand them to the defendants. Schulte v. First National Bank (Minn.) 24 N. W. 320; Cohen v. Figgins, 1 Ill. 19; State ex rel. Henderson v. Boone County, 50 Mo. 317, 11 Am. Rep. 415; Beene’s Adm’r v. Phillips, 37 Ala. 312; Garlick v. Sangster, 9 Bingham, 40. It is insisted that this suit could have been brought originally in this court, and therefore the parties could waive the manner of its getting here; that the parties, by appearing at Pell City, obtaining the order of the tribunal there for removal, and afterwards appearing here and treating the case as properly removed and pending in this court for several terms, without objection of any kind, are not now in position to question the jurisdiction of this court; and that they have waived the manner in which the case has gotten here, which, it is urged, is the only ground upon which objection to the jurisdiction of this court, can now be rested. This argument overlooks the fact that the objection here goes to the jurisdiction of this court over the subject-matter, which waiver or consent of the parties cannot confer, when the law has not given it. The jurisdiction to remove a case from a state court to this court, and of this court to try it after it is removed, depends upon the statutes of the United States. They give the court jurisdiction only of “suits” pending in a state court. The existence of a “suit” in a [854] state court is an indispensable element of the jurisdiction, and when that is wanting there is no jurisdiction in the federal court over any proceeding removed from a tribunal which is not a court. Upshur v. Rich, 135 U. S. 467, 10 Sup. Ct. 651, 34 L. Ed. 196. The defendants, by appearing at Pell City and obtaining an order of removal by that tribunal, could not create a court, or make a suit of that which was not a suit, since it was not pending in a court; neither did they waive any right to object to its jurisdiction when the proceedings were removed, here. That result would not have been worked by their appearance there, if the Pell City tribunal had been a lawful court of the state, instead of a mere illegal assemblage of court officers, without any authority of law. Wabash Western Railway Co. v. Brow, 164 U. S. 271, 17 Sup. Ct. 126, 41 L. Ed. 431. This court has no jurisdiction of these removed proceedings, because the body whose proceedings were removed here could, never acquire jurisdiction in any event whatever. That body having no jurisdiction in the beginning, and being.powerless ever to obtain any, this court could not get jurisdiction of a “suit” by removing its proceedings here. Fidelity Trust Co. v. Gill Car Co. (C. C.) 25 Fed. 737; Elliott v. Shuler (C. C.) 50 Fed. 454; Swift v. Railroad Co. (C. C.) 58 Fed. 858. The objection raised by defendants goes to the jurisdiction of the subject-matter, and waiver or consent of parties cannot give that. Besides, the failure of defendants to earlier bring forward their objection, if that could work a waiver of the trouble here, can hardly be deemed a waiver, when objection was made at the earliest opportunity, after the decision of the Supreme Court of Alabama that the Pell City tribunal was never a court of the state. Jackson v. Allen, 132 U. S. 27, 10 Sup. Ct. 9, 33 L. Ed. 249. Moreover, it is the duty of the court, when, its lack of jurisdiction of the subject-matter is made known, howsoever that information comes to it, to decline to further entertain the case. This is a hard case upon the plaintiff. His right of action is now barred by the statute of limitations, without any fault upon his part, in consequence of his suing in a tribunal which a decision of the Supreme Court of the state, made after the proceedings were removed here, has declared never to have been a court. This court has struggled to find some way, consistent with legal principles, to relieve the plaintiff, but can find none. The proceedings cannot be remanded to the circuit court at Pell City, because there is not and never has been any such court. They cannot be remanded to the circuit court of St. Clair county, because the suit has never been instituted or pending in that court. The case must, therefore, be stricken from the docket.