Waterbury v. Laredo

29 F. Cas. 378, 3 Woods 371

• Court: U.S. Circuit Court for the District of Western Texas
• Decided: November 15, 1879
• Status: Published

Opinion

DUVAL, District Judge.

This ease has been removed here under the provisions of the act of congress of March 3. 1875. entitled “An act to determine the jurisdiction of circuit courts of the United States, and to regulate the removal of causes from state courts, and for other purposes.” 18 Stat. 470. Section 1 of the act of 1875 provides, among other things: “That the circuit courts of the United States shall have original cognizance, concurrent with the courts of the several states, of all suits of a civil nature at common law or in equity, where the matter in dispute exceeds, exclusive of" costs, the sum or value of five hundred dollars, and arising under the constitution or laws of the United States, or treaties made, or which shall be made, under their authority, or in which the United States are plaintiffs or petitioners. or in which there shall be a controversy between citizens of different states,” etc.. The original cognizance, however, given by this-section is subject to the following limitation l “Nor shall any circuit or district court have cognizance of any suit founded on contract in favor of an assignee, unless a suit might have been prosecuted in such court to recover thereon if no assignment had been made, except in cases of promissory notes, negotiable by the law merchant, and bills of exchange.” By section 11 of the judiciary act of 1789 (1 Stat. 73) the exception was confined to “foreign bills of exchange.” - That the indebtedness of the city of Laredo to Davis, growing out of the alleged contracts, is a chose in action, there is no doubt. It is equally clear that Davis himself, being a citizen of the state of Texas, could not have sued the defendants, citizens of the same state, in the circuit court of the United States, nor could the plaintiffs, as his assignees,’ have done so. In either case the original jurisdiction, or the power to take cognizance of such a suit, if commenced in the circuit court, would have been wanting, under the limitation quoted above. But the question now is, whether, if the case has been removed into this court, as provided for and allowed by the act of March 3, 1875, the jurisdiction to hear and determine it does not attach ? The case Bushnell v. Kennedy, decided by the supreme court of the United States in 1869 (9 Wall. [76 U. S.] 387), was one from which it appears that the cause of action was an indebtedness of Bushnell, a citizen of the state of Connecticut, to Mills & Frisby, who are citizens of Louisiana, and that it was a chose in action. Mills & Frisby assigned all their claim to Kennedy & Co., also citizens of Louisiana, who sued Bushnell in the third district court of New Orleans, by whom the case was removed into the circuit court of the United States for the district of Louisiana. The circuit court remanded the case to the state court, for want of jurisdiction. The supreme court of the United States held that this was an error — that while the circuit court would not have had original cognizance of the case, had the suit been commenced therein, by reason of the limitation contained in the eleventh section of the judiciary act of 1787, that still, as Bushnell had the right, under the twelfth section of the same act (he being the defendant and a citizen of Connecticut), to remove the case, this removal gave the circuit court jurisdiction. The case of City of Lexington v. Butler, 14 Wall. [81 U. S.] 282, was one of removal from a state court, under the provisions of the act of congress of 1867. But it fully recognizes and sustains the principle established in the case of Bushnell v. Kennedy, supra. In fact, it directly refers to that ease as removing all doubt upon the subject. Mr. Justice Clifford, in delivering the opinion of the court, says: “Suits may properly be removed from a state court, into the circuit court, in cases where the jurisdiction of the circuit court, if the suit had been originally commenced there, could not have been sustained, as the twelfth section of the judiciary act does not contain any such restriction as that in the eleventh section of the act defining the original jurisdiction of the circuit courts.” So, in like manner, the second section of the act of 1875, supra, contains no such restriction as is found in the first section. It provides that “in any suit of a civil nature, at law or in equity, brought in any state court, where the matter in dispute exceeds, exclusive of costs, the sum or value of $500, and in which there shall be a controversy between citizens of different states, either party may remove the same into the proper circuit court of the United States.” Judge Dillon, in a recent treatise on “Kemoval of causes from state to federal courts,” says: “It should be borne in mind that, in cases removed from the state courts, the jurisdiction of the circuit court is dependent upon the act under which the suit is removed, and not upon the legislation which confers jurisdiction upon that court in cases originally brought therein; and therefore the restrictions' on the jurisdiction in the eleventh section of the judiciary act have no application to cases removed under the twelfth section of that act.” And so, I apprehend that the restrictions on the jurisdiction of the circuit court contained in the first section of the act of 1875, have no application to cases removed under the provisions of the second and third sections of the same act. See, also, Barclay v. Levee Commissioner [Case No. 977]; Gaines v. Fuentes, 92 U. S. 10. It seems to me that, under the decisions cited, this court has jurisdiction to hear and determine the cause in question. The motion to remand is refused.