Matter of Moore, 209 U.S. 490 (1908)

Mr. Justice Brewer,

after making the foregoing statement, delivered the opinion of the court.

It was held in Ex parte Wisner, 203 U. S. 449, that:

On the authority of this case it is contended by petitioner that as in this action none of the parties were citizens of the. State of Missouri, it could not be removed by the defendant

into the Circuit Court of the United States, and that upon the failure of the United _ States Circuit Court to remand the case to the state court in which it was originally brought mandamus from this court is an appropriate remedy. But in that case the plaintiff never consented to accept the jurisdiction of the United States court, while in this case it is contended that both parties did so consent, and that therefore the decision in that case.is not controlling.

This brings up two questions, first, whether both parties did consent to accept the jurisdiction of the United States court; and, second, if they did, what effect such consent had upon the jurisdiction of the United States court.

That the defendant consented to accept the jurisdiction of the United States court is obvious. It filed a petition for removal from the State to the United States court. No clearer expression of its acceptance of the jurisdiction of the latter court could be had. After the removal the plaintiff, instead of challenging the jurisdiction of the United States court by a motion to remand, filed an amended petition in that court, signed a stipulation giving time to the defendant to answer; and then both parties entered into successive stipulations for a continuance of the trial in that court. Thereby the plaintiff consented to accept the jurisdiction of the United States court, and was willing that his controversy with the defendant should be settled by a trial in that court. The mere filing of an amended petition was an appeal to that court for a trial upon the facts averred by him as they might be controverted by the defendant. And this, as we have seen, was followed by repeated recognitions of the jurisdiction of that court.

That a next friend may select the tribunal in- which the suit shall be brought is clear. While he may do nothing prejudicial • to the substantial rights of the minor, yet the mere selection of one out of many tribunals having jurisdiction cannot' be considered as an act to the latter’s prejudice. Certainly the election to accept the jurisdiction of a court of the United States is not an act prejudicial to substantial rights. In Kings-

bury v. Buckner, 134 U. S. 650, where the next friend consented that a case on a writ of error might be heard in some other grand division of the Supreme Court of Illinois than the one in which it was decided, and at a term of that court earlier than such writ of error could ordinarily be heard, and also waived the execution of an appeal bond by the opposite party, it was held that the infant was bound by such action, the court saying (p. 680):

Again, in Thompson v. Maxwell Land Grant Company, 168 U. S. 451, where the question was whether the infant was bound by a consent decree, it wras said (p. 462):

been entered as follows: ‘And the plaintiff and the defendants, . . . Thomas Keys, . . . and also in his capacity of guardian ad litem of Bridget Walsh and William Walsh, consenting to the following decree: And this court being satisfied upon the representations of counsel that the decree is fit. and proper to be made as against the said Bridget and William; it is thereupon ordered, and adjudged, and decreed,’ etc.

This also seems to be the settled law of Missouri. Raming v.

Metropolitan Street Railway, 157 Missouri, 477. In that case it was held that the next friend was the party to make application and affidavit for a change of venue from one state court to another, and the court said (p. 514):

Turning now to the other question, the Constitution, Art. Ill, § 2, provides that the judicial power of the United States shall extend to controversies “between citizens of different States.” Section 11 of the Judiciary Act of 1789 (1 Stat. 78) granted to the Circuit Courts original cognizance “of all suits of a civil nature at common law or in equity . . . where the suit is between a citizen of the State where the suit is brought, and a citizen of another State,” and added: “And no civil suit shall be brought before either of said courts (Circuit or District) against an inhabitant of the United States, by any original process in any other district than that whereof he is an inhabitant, or in which he shall be found at the time of serving the writ.” Section 12 (p. 79) provided “that if a suit be commenced in any state court ... by a citizen of the State in which the suit is brought against a citizen of another State,” a removal might be had of the case to the next Circuit Court to be held in the district where the suit is pending.' The first section of the act of August 13, 1888, c. 866, 25 Stat. 433, like the Judiciary Act, invested the Circuit Courts of the United States with original cognizance of suits in which there is a controversy between citizen's of different States, provided that no civil suit should be brought before either of said courts (Circuit or District) against any person by any original process or proceeding in any other district than that whereof he is an inhabitant,‘and. closed with these words, “but where the jurisdiction is founded only on the fact that the action is between citizens of different States, suit shall be brought only in the district of the residence of either the plaintiff or the defendant.” The second sentence of § 2 prescribed, in respect to removals, that “any other suit of a civil nature, at law or in equity, of which the Circuit Courts of the United States are given jurisdiction by the preceding section, and which are now pending, or which may hereafter be brought, in any state court, may be removed into the Circuit Courts of the United States for the proper district by the defendant or defendants therein, being non-residents of that State.” It will thus be

seen that by both the act of 1789 and that of 1888 there is a general grant to Circuit Courts of jurisdiction over controversies between citizens of different States, and in each of them there is a limitation as to the district in which the action must be brought. In the light of this similarity between these two acts must the second question be considered.

The contention is that as this action could not have been originally brought in. the Circuit Court for the Eastern District of Missouri by reason of the last provision quoted from § 1, it cannot under § 2 be removed to that court, as the authorized removal is only of those cases of which by the prior section original jurisdiction is given to the' United States Circuit Courts. But this ignores the distinction between the general description of the jurisdiction of the United States courts and the clause naming the particular district in which an action must be brought.

It may be well to examine the authorities touching this matter. In Gracie v. Palmer, 8 Wheat. 699, the court, by Mr. Chief Justice Marshall, held that:

In Toland v. Sprague, 12 Pet. 300, 330, Mr. Justice Barbour thus stated the rule:

Pollard v. Dwight, 4 Cranch, 421; Barry v. Foyles, 1 Pet. 311.”

In Ex parte Schollenberger, 96 U. S. 369, 378, Mr. Chief Justice Waite said:

In First National Bank of Charlotte v. Morgan, 132 U. S. 141, 145, Mr. Justice Harlan thus referred to'a kindred question:

In McCormick Harvesting Machine Company v. Walthers, 134 U. S. 41, 43, Mr. Chief Justice Fuller, quoting the provisions of § 1 of the act of 1888, said:

ted States in respect to the subject-matter of the suit and the character of the parties who might sustain suits in those courts is described in the section, while the foregoing clause [the last clause in the section] relates to' the district in which a suit may be originally brought.”

In St. Louis &c. Railway Company v. McBride, 141 U. S. 127, 131, it was said:

In Shaw v. Quincy Mining Company, 145 U. S. 444, 453, a case arising after the act of 1888, and in which the defendant promptly raised the question of jurisdiction, Mr. Justice Gray referred to this matter in these words:

Wheat. 699; St. Louis &c. Ry. v. McBride, 141 U. S. 127, 131, and cases cited.”

See also Southern Pacific Company v. Denton, 146 U. S. 202.

In Central Trust Co. v. McGeorge, 151 U. S. 129, 132, an action after the act of 1888 was in force, and in which neither party was a citizen of the State or resided in the district in which the action was brought, Mr. Justice Shiras used this language:

wrong district. Grade v. Palmer, 8 Wheat. 699; Taylor v. Longworth, 14 Pet. 172, 174; St. Louis & San Francisco Railway v. McBride, 141 U. S. 127; Texas & Pacific Railway v. Cox, 145 U. S. 593; Central Trust Company v. McGeorge, 151 U. S. 129.”

In Mexican National Railroad Company v. Davidson, 157 U. S. 201, 208, Mr. Chief Justice Fuller, after stating that the action could not have been originally brought in the Circuit Court of the United States because both parties were, in the eyes of the law, citizens of the same State, added:

In Interior Construction & Improvement Company v. Gibney, 160 U. S. 217, 219, Mr. Justice Gray thus stated the law:

In Ex parte Wisner, supra, Mr. Chief Justice Fuller, referring

to St. Louis &c. Railway Company v. McBride, 141 U. S. 127, said:

Several other cases in this court, as well as many in the Circuit Courts and Circuit Courts of Appeal, might be noticed, in which a similar ruling as to the effect of a waiver was announced. It is true that in most of the cases the waiver was by the defendant, but the. reasoning by which a defendant is precluded by a waiver from insisting upon any objection to the particular United States court in which the action was brought compels the same conclusion as to the effect of a waiver by the plaintiff of his right to challenge that jurisdiction in case of a removal. As held in Kinney v. Columbia Saving & Loan Association, 191 U. S. 78, a petition and bond for removal are in the nature of process. They constitute the process by which the case is transferred from the state to the Federal court, and if when the defendant is brought into a Federal court by the. service of original process he can waive the objection to the particular court in which the suit is brought, clearly the plaintiff, when brought into the Federal court by the process of removal, may in like manner waive his objection to that court. So long as diverse citizenship exists the Circuit Courts of the United States have a general jurisdiction. That jurisdiction may be invoked in an action originally brought in a Circuit Court or one subsequently removed from a state court, and if any objection arises to the particular court which does not run to the Circuit Courts as a class that objection may be waived by the party entitled to make it. As 0we have seen in this case, the defendant applied for a removal of the case to the Federal court. Thereby he is foreclosed from objecting to its jurisdiction. In like manner, after the removal had been ordered, the plaintiff elected to remain in

that court, and he is, equally with the defendant, precluded from making objection to its jurisdiction.

Special reliance is placed by petitioner upon this statement in the Wisner case (p. 460):

It is said that here is a distinct declaration that “jurisdiction of the suit could not have obtained, even with the consent of both parties.” There was no pretense of any consent on the part of the plaintiff in that cáse, and therefore this statement was unnecessary. In order, however, to prevent future misconception we add that nothing in the opinion in the Wisner case is to be regarded as changing the rule as to the effect of a waiver in .respect to a particular court.

It may not be amiss to note that in several of the Circuit Courts and Courts of Appeal the Wisner case has’ been considered, and in all held that no change was intended by it. Corwin M. Company v. Henrici Washer Company, opinion by Lowell, Circuit Judge, 151 Fed. Rep. 938; Louisville & Nashville Railroad Company v. Fisher, 155 Fed. Rep. 68, Circuit Court of Appeals (Sixth Circuit), opinion by Lurton, Circuit Judge; Shanburg v. F. & C. Co., Circuit Court of Appeals (Eighth Circuit), opinion by Riner, District Judge; McPhee & McGinnity Company v. Union Pacific R. R. Co., Circuit Court of Appeals (Eighth Circuit), opinion by Sanborn, Circuit Judge. These two opinions are not yet published.

We might also refer to the several text books in which is affirmed the general doctrine of the effect of the waiver of an

objection to a particular court in which the suit has been brought or to which it has been removed. We have made these many quotations and references, not simply to establish the doctrine itself, but to emphasize the widespread injurious results which may be expected to follow from now enforcing a different rule; for, if in a case between citizens of different States, of which the Circuit Courts of the United States are given general jurisdiction, an objection to the jurisdiction of .a particular one of those courts cannot be waived and no consent can give jurisdiction, it is clear that many judgments have* been rendered by those courts in reliance upon such a waiver, which will necessarily be held to be absolutely void, and the litigation must be had over again in some other courts, resulting, possibly, in different decisions f rough the disappearance of witnesses, the loss of testimony, of the running of the statute of limitations.

The jurisdiction of the Circuit Court of the United States for the Eastern Division of the Eastern District of Missouri was settled by the proceedings had by the two parties, and the application for a writ of mandamus is

The Chief Justice

dissenting.

The right of action was not vested in the next friend and the citizenship of the infant controls. The case is one, therefore, in which the plaintiff was a citizen and resident of the State of Illinois' and the defendant a corporation created and existing under the laws of the State of- Kentucky, and a citizen and resident of that State. The action was brought in the Circuit Court of the city of St. Louis, Missouri, of which State neither of the parties was a citizen. The fact that the next .friend, who also acted as attorney-at-law for the minor, was a citizen of Missouri, is immaterial.

The question is whether, where neither of the parties is a citizen of the State in which the action is, brought, the juris

diction of the Circuit Court can be maintained if both parties consent to it. Jurisdiction of the Circuit Courts depends upon some act of Congress, Stevenson v. Fain, 195 U. S. 165, 167; Turner v. Bank, 4 Dall. 8, 10; McIntire v. Wood, 7 Cranch, 504, 506; and I quote at length from the opinion of Mr. Justice Gray in Shaw v. Quincy Mining Co., 145 U. S. 444, because he therein examines the statutory provisions bearing on the question before us, saying (p. 446):

“In carrying out the provision of the Constitution which declares that the judicial power of the United States shall extend to controversies ‘between citizens of different States,’ Congress, by the Judiciary Act of September 24,' 1789, c. 20, § 11, conferred jurisdiction on the Circuit Court of suits of a civil nature, at common law or in equity, ‘between a citizen of the State where the suit is brought and a citizen of another State,’ and provided that ‘no civil suit shall be brought’ ‘against an inhabitant of the United States,’ ‘in any other district than that whereof he is an inhabitant, or in which he shall be found at the time of serving the writ.’ 1 Stat. 78, 79.

in a State containing more than one district, actions not local should ‘be brought in the district in which the defendant resides,’ or ‘if there be two or more defendants residing in different districts in the same State,’ then in either district. 11 Stat. 272. The whole purport and effect of that act was not to enlarge, but to restrict and distribute jurisdiction. It applied only to a State containing two or more districts; and directed suits against citizens of such a State to be brought jn that district thereof in which they or cither of them resided. It did not subject defendants to any new liability to be sued ’ out of the State of which they were citizens, but simply proscribed in which district of that' State they might be sued.

to be brought in any other district than that whereof the defendant is an inhabitant; and the effect is that 'where the jurisdiction is founded upon-any of the causes mentioned in this section, except the citizenship of the parties, it must be brought in the district of which the defendant is an inhabitant; but where the jurisdiction is founded solely upon the fact that the parties are citizens of different States, the suit may be brought in the district in which either the plaintiff or the defendant resides.’ McCormick Co. v. Walthers, 134 U. S. 41, 43. And the general object of this act, as appears upon its face, and hag been often declared by this court, is to contract, not to enlarge, the jurisdiction of the Circuit Courts of the United States. Smith v. Lyon, 133 U. S. 315, 320; In re Pennsylvania Co., 137 U. S. 451, 454; Fisk v. Henarie, 142 U. S. 459, 467.

“As to natural persons, therefore, it cannot be doubted that the effect of this act, read in the light of earlier acts upon the same subject, and of the_ judicial construction thereof, is that the phrase ‘district of the residence of’ a person is equivalent to ‘district whereof he is an inhabitant,’ and cannot be construed as giving jurisdiction, by reason of citizenship, to a Circuit Court held in a State of which neither party is a citizen, but, on the contrary, restricts the jurisdiction to the district in which one of the parties resides within the State of which he is a citizen; and that this act, therefore, having taken away the alternative, permitted in the earlier acts, of suing a person in the district ‘in which he shall be found,’ requires any suit, the jurisdiction of which is founded only on its being between citizens of different States, to be brought in the State of which one is a citizen, and in the district therein of which he. is an inhabitant and resident.”

Treating the clause that “where the jurisdiction is founded only on the fact that the- action is between citizens of different States, suit shall be brought only in the district of the residence of either the plaintiff or the defendant” as by way of proviso, that proviso must be regarded as excluding from the enacting clause “some possible ground of misinterpretation of it, as

extending to cases not intended by the legislature to be brought within its purview.” Minas v. United States, 15 Pet. 445; Austin v. United States, 155 U. S. 417, 431.

Jurisdiction of the subject-matter is given only by law and cannot be conferred by consent, and, therefore, the objection that a court is not given such jurisdiction- by law, if well founded, cannot, of course, be waived by the parties.

In my judgment, § 1, in cases where litigants are citizens of different States, confers jurisdiction only on the Circuit Court of the district of the plaintiff’s residence and the Circuit Court of the district of the defendant’s residence. And it is not conferred on the Circuit Court of the district of neither of them, and cannot be even by consent. If this were not so, as Mr. Justice Harlan said in Bors v. Preston, 111 U. S. 255, “it would be in the power of the parties by negligence or design to invest those courts with a jurisdiction expressly denied to them;’’ or where it may also be said, such jurisdiction was not expressly conferred. This view was expressed in Ex parte Wisner, 203 U. S. 449, and although it is true that the proposition need not have been there announced, because in that case it was correctly decided that there was not a consent to the jurisdiction by both parties, yet the rule was so laid down, and the result of the opinion in this case is to disapprove of and overrule In re Wisner, so far as that proposition is concerned. And as I adhere to that view I dissent.

But it should be added that this case was brought in a state court and removed by the defendant into the Federal court under the second section of the act of August 13, 1888, which provided “ any other suit of a civil nature, at law or in equity, of which the Circuit Courts of the United States are given jurisdiction by the preceding section, which are now pending, or which may hereafter be brought in any state court, may be removed into the Circuit Court of the United State's for the proper district by the defendant or defendants therein being non-residents of that State.” And it is settled that.in order to make a suit removable under this part of the act itTnust be one

which the plaintiff could have brought originally in the United States Circuit Court. The right of removal given to the non-resident defendant or defendants by the second clause of §2, removing the cause from the state court to the United States Circuit Court, is subject to the limitations of that clause that it must be a suit within the jurisdiction of such Circuit Court, and that it must be removed to the proper district, and therefore the act does not authorize him or them to remove it to the United States Circuit Court held in a district wherein that court was not given jurisdiction of the suit removed, or to any other judicial district in which the suit is not pending, as provided in § 3. Plaintiff brought his suit in a district wherein the defendant could not be sued in the Federal court within the meaning of the act. Hill v. Woodland Amusement Company, 158 Fed. Rep. 530.

The proper district within the meaning of the second clause of the second section means either of the districts made “proper districts”'by the first section of the act, and when the third section requires the petition to be “for the removal of such suit into a Circuit Court to be held in the district.where such suit is.pending,” it must have been contemplated that the suit would be pending in a “proper district.” It is plain that the entire act is not to be construed as giving jurisdiction by reason of citizenship to a Circuit Court held in a State of which neither party is a citizen, but, on the contrary, that it restricts the jurisdiction to the district in which one of the parties resides within the State of which he is a citizen,