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Opinion of the Court.

braska, 75; Comp. Stats. Neb. 1881, 539; 1885, 637. The plea admits service upon the company's local managing agent, and as the defendant entered full appearance and answer, and, after the withdrawal of the answer and the filing of the plea and its disposition, went to trial on the merits upon issue joined on that answer, the objection to the jurisdiction, if it can be urged at all, must be confined to want of power to entertain the suit outside of defendant's own district.

By section 1 of the act of March 3, 1887, 24 Stat. 552, c. 373, as corrected by the act of August 13, 1888, 25 Stat. 433, C. 866, to amend the act of March 3, 1875, determining the jurisdiction of the Circuit Courts of the United States, and reguiating the removal of causes from the state courts and for other purposes, it was provided : “But no person shall be arrested in one district for trial in another in any civil action before a circuit or district court; and no civil suit shall be brought before either of said courts against any person by any original process or proceeding in any other district than that whereof he is an inhabitant, 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 jurisdiction common to all the Circuit Courts of the United 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 relates to the district in which a suit may be originally brought. 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. “The concluding lines,” said Mr. Justice Field in Wilson v. Western Union Telegraph Co., 31 Fed. Rep. 561, “ are to be read as a proviso to the general provision that no civil suit.shall be brought except in the district whereof the defendant is an inhabitant." This conclusion was reached

Opinion of the Court.

and announced by many of the Circuit Courts, and there can be no doubt of its correctness. Fales v. Chicago, Milwaukee &c. Railway, 32 Fed. Rep. 673; St. Louis &c. Railroad v. Terre Haute &c. Railroad, 33 Fed. Rep. 385; Loomis v. N. Y. & Cleveland Gas Co., 33 Fed. Rep. 353; Gavin v. Vance, 33 Fed. Rep. 84; Swayne v. Boylston Insurance Co., 35 Fed. Rep. 1.

The judiciary act of 1789 provided that no civil suit should be brought before the Circuit or District Courts against an inhabitant of the United States by any original process in any other district than that whereof he was an inhabitant or in which he should be found at the time of serving the writ, 1 Stat. 79, c. 20, $ 12, and the act of 1875, 18 Stat. 470, c. 137, $ 1, contained a similar provision. This liability of the defendant to be sued in a district where he might be found at the time of serving process was omitted in the act of 1887, but he still remained liable to suit in the district of the residence of the plaintiff as well as in his own district; and as he could not be sued anywhere else, we held in Smith v. Lyon, 133 U. S. 315, that where there were two plaintiffs, citizens of different States, the defendant, being a citizen of another State, could not be sued in the State of either of the plaintiffs. Mr. Justice Miller points out, in delivering the opinion of the court, that the evident purpose of Congress in the act of 1887 was to restrict rather than enlarge the jurisdiction of the Circuit Court, “while,” he says, " at the same time a suit is permitted to be brought in any district where either plaintiff or defendant resides.” · The defendant answered to the merits in this case, and was then permitted to file the plea in question for the purpose of insisting that it was not subject to suit in a United States court in the district of the plaintiff's residence. Upon the overruling of this plea, the cause proceeded to trial on the merits upon the issues made up on the complaint, answer and replication, the trial continuing for several days, both parties appearing by their attorneys, adducing testimony, and arguing the case to the jury. Under these circumstances, there being no question whatever presented by the record, except whether the

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Opinion of the Court.

defendant was liable to be sued in the Circuit Court of the United States for the District of Nebraska, and it being clear that it was, and there being color for the motion to dismiss, we sustain the motion to affirm, as we do not need further argument on that question.

Judgment affirmed.

RICHMOND AND DANVILLE RAILROAD COM

PANY v. THOURON

RICHMOND AND WEST POINT TERMINAL RAIL

WAY AND WAREHOUSE CO. v. THOURON.

APPEALS FROM THE

CIRCUIT COURT OF THE UNITED STATES FOR

THE EASTERN DISTRICT OF TENNESSEE.

Nos. 1262, 1263. Submitted February 3, 1890. — Decided March 10, 1890.

An order remanding a cause from a circuit court of the United States to

the state court from which it was removed is not a final judgment or decree, and this court has no jurisdiction to review it.

MOTIONS TO DISMISS for want of jurisdiction. The case is stated in the opinion.

Mr. Charles M. Da Costa and Mr. Samuel Dickson for the - motions.

Mr. Pope Barrow opposing.

MR. CHIEF JUSTICE FULLER delivered the opinion of the court.

These are appeals from orders of the Circuit Court remanding the above-entitled cases to the state court, which appeals the records show wère "granted under the provisions of the act of February 25, 1889, on the ground that the court has no jurisdiction of the cause."

Opinion of the Court.

Before the act of 1875, c. 137, 18 Stat. 470, we held that an order by the Circuit Court remanding a cause was not such a final judgment or decree in a civil action as to give us jurisdiction for its review by writ of error or appeal. The appropriate remedy in such a case was then, by mandamus, to compel the Circuit Court to hear and decide. Babbitt v. Clark, 103 U. S. 606, 609; Turner v. Farmer's Loan and Trust Company, 106 U. S. 552, 555; Railroad Company v. Wiswall, 23 Wall. 507. The act of 1875 made such order reviewable (without regard to the pecuniary value of the matter in dispute); but by the act of March 3, 1887, 24 Stat. 552, 555, c. 373, as corrected by the act of August 13, 1888, 25 Stat. 433, c. 866, the provision to that effect was repealed, and it was also provided that no appeal or writ of error should be allowed from the decision of the Circuit Court remanding a cause. In Morey v. Lockhart, 123 U. S. 56, 57, Mr. Chief Justice Waite, speaking for the court, said: "It is difficult to see what more could be done to make the action of the Circuit Court final, for all the purposes of the removal, and not the subject of review in this court. First, it is declared that there shall be no appeal or writ of error in such a case, and then, to make the matter doubly sure, the only statute which ever gave the right of such an appeal or writ of error is repealed." And the court held that the language of the act was broad enough to cover all cases, and also that an appeal or writ of error would not lie under § 693 of the Revised Statutes, because that section applied only to final judgments or decrees, and an order remanding was not a final judgment.

The act of February 25, 1889, 25 Stat. 693, c. 236, provides that "in all cases where a final judgment or decree shall be rendered in a Circuit Court of the United States in which there shall have been a question involving the jurisdiction of the court, the party against whom the judgment or decree is rendered shall be entitled to an appeal or writ of error to the Supreme Court of the United States to review such judg ment or decree, without reference to the amount of the same; but in cases where the decree or judgment does not exceed the sum of five thousand dollars the Supreme Court shall not re

Syllabus.

view any question raised upon the record except such question of jurisdiction."

The words "a final judgment or decree," in this act, are manifestly used in the same sense as in the prior statutes which have received interpretation, and these orders to remand were not final judgments or decrees whatever the ground upon which the Circuit Court proceeded. Graves v. Corbin, 132 U. S. 571, 591.

Appeals dismissed for want of jurisdiction.

ORMSBY v. WEBB.

ERROR TO THE SUPREME COURT OF THE DISTRICT OF COLUMBIA.

No. 179. Argued January 9, 10, 1890.- Decided March 3, 1890.

An order in the Supreme Court of the District of Columbia, at special term, admitting a writing to probate and record as the will of a deceased person, in conformity with the findings of the jury empanelled, in the same court, to try the issue of will or no will, is one involving the merits of the proceeding, and may be reviewed by the same court in general term, and such review will bring before the general term all the questions arising upon bills of exceptions taken at the trial beforé the jury and if the value of the matter in dispute be sufficient, this court has jurisdiction to reëxamine a final order of the Supreme Court of the District of Columbia affirming the order of the Probate Court, and to pass upon the questions of law raised by such bills of exceptions. Van Ness v. Van Ness, 6 How. 62; and Brown v. Wiley, 4 Wall. 165, distinguished.

In the trial before a jury of an issue made up in a Probate Court as to the incompetency of a deceased person, from unsoundness of mind or undue influence, to make a will, declarations made by the deceased to a witness that he received the bulk of his estate by breaking the will of his grandfather, who was also the ancestor of the caveators, and that his estate consisted in a great degree of that property and its accumulatious; and also declarations of one of the legatees, made about, or after the date of the execution of the alleged will, that she had knowledge at that time of the execution of the will and of its provisions, should be excluded from the jury.

On the trial of that issue it was proper for the jury to consider whether the undue influence alleged to have been exercised by a particular legatee in

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