V. CHAMBERLAIN.
307
BRISENDEN v.CHA.'\ffiERLAIN. (Circuit Court, D. f!louth 1.
December 28, 1892.)
REMOVAL OF CAUSES-STATUTORY RIGHTs-DEA'I'H BY WRONGFUL ACT.
:Section 2 of the jUdiCial'Y act of 1887-88 gives the right of removal from a state to a federal circuit court only when the latter court would have original jurisdiction under the first section. The first section gives the circuit court origh:;al jurisdiction concurrent with the state courts "in all suits of a civil nature at common law ')1' ill eqnity," etc. Held, that the phrase "common law" is here used ill contradistinction to equity, admiralty, and maritime jUrisdiction, and includes all cases involving "legal" rights, whether such rights arise from the settled principles of the common law or are given by statute; and hence a nonresident defendant may remove a suit brought under a state statute giving a right of action for wrongfullY causing death, A receiver of a railroad company, being a citizt'n of another state, may remove an actionbronght againSt him in his official capacity for causing death by wrongful act, although tht' railroad company itself is a citizen of the state in which the action is brought.
lilt
SAME-CITIZENSHIP-RAILROAD RECEIVER.
8.
SAME-RESIDENCE-WHAT CONSTITUTES.
A practicillg lawyer, having an office in New York city, and a borne and family iJ1 the state of New Yor]t, was apppointed receiver of a South Carolilla railway company, and at frequent, though Irregular, illtervals went to South Carolina on business counected with the receivership. He had.no fixed abode there,but. always put up :It an hotel during bis stay, anl'!. returned to New York when his busilless was finished. Held, that he was not a resident of South Carolina, withill the meanillg of the removal of acts, and was entitled to remove a cause brought against him in a court of that .state in hiS official capllClty. One who has filed a petition for the rt'Illoval of a cause in a state court before the expir-J.tion of the time fixed by the. laws of the state or the rules of the> state court to plead or answer, has fulfilled the conditions 0:1' the re'movlllads, anrl tIle fact thRthe files his answer in the state court on the same day with his petition is not a waiver of the right to remove.
4. SAME-PETITION-Tnl. OF FILING-WAIVER.
At Law. Action by Sarah J. Brisenden, administratrix of Henr.r J. Brisenden, deceased, against Daniel H. Chamberlain, receiver of the South Carolina Railway Company, to recover damages for wrongfully causing the death of the said Henry J. Brisenden. On motion to remand. Denied. Melton & Melton, for the motion. Brawley & Barnwall, opposed. SIMONTON, District Judge. l.'his is an action at law, originally brought in the court of common pleas of the state of South Caroliwt sitting in Aiken county. The cause of action was the killing of plaintiff's intestate upon the track of the railway of which the defendant is the receiver. The action was brought under the provisions of section 2183, Gen. St. S. C., enacting for that state what is . commonly known as ."Lord Campbell's Act." The defendant, on the last· day provided by the Code of South Carolina of the period within which he was required to answer or demur to the complaint, filed his petition for removal into this court, accompanied
FEDEnAL lUllPORTER,
vol. 53.
by a proper bond. On the same day he filed his answer. In point of fact the petition preceded'tM answer, but, as both were filed on the same day, this is of no The state court heard the petiilion. No objection was rimde to its form or to the sufficiency of the bond. ,The prayer of the petition was refused on two grounds: First, 'because the action was not at cominon law, but under a statute; a:n,q,li\econd, because the railway company of which the defendant is receiver, and which he represented, was a citizen of the state of South Carolina, of which state plaintiff was also a citizen. A tratllleript of the record was filed in this court, and the cause removed. Steamship Co. v. TugIltaIl, 106 U. S.118, 1 Sup. Ct. Rep. 58. A motion to remand is now made on the grounds taken i:uthe state eourt and two others: (1) 'fhat the action, being under a and not at common law, is not within the jurisdiction of this court; (2) ,that thel'eal,defelldant is ,the South Carolina Railway Company, a ,citizex;i,pf,. tlie samel:ltate as the plaintiff; (3) ,that D. H. Chamberlain, the receiverj ili\l'esideut of the district of South Carolina, and so not entitled to remove the cause; (4) that, the petition having been :t¥ed on the same day with the answer, the defendant has submitted the J¢'isdiction olthe state court, and cannot remove his cause. Tli#"fiI;l\lt ground maybe thus stated: The second section of the act of 1887--88 permits the removal of a suit of a civil nature at law in equity only, when original juri8dic1ion has been given to court of the United states of such suit by the first section of that ,act. This fil'st section, deClares: "The circuit courts of the United States shall h:1ve original cognizance, concurrent with the courts of the several states, of all suits of a civil nature at common law oreqllity," etc. This suit, being a suit at law under Lord Campbell's Act, is not a suit at common law, but under a statute. What.is meant by the phrase, "suits of a civil nature at common law?" The constitution of the United States (article 3, § 2) ex· tends the judicial power "to. all cases in law or equity, * * * to contToversies * * * between citizens of different states." The seventh amendment preserves the trial by jury in suits at common law ",hen'the vulue in controversy shall exceed .$20, and requires that no fact tried by a jllryshall be re-examined in any court of the United States otherwise than according to the rules of the common law. The act of 1789, (1 U. 8.St,:'tt Large, p. 78,) in conferring uses precisely jurisdiction on the circuit conrts of the United the words of the act of 1887--88: "The circuit courts shall have original cognizance concurrent with the courts of the several states of. a civil nature at common law or in equity," etc. The act of. 1815 (18 St. p. 470) uses precisely the same language, but in the removal' sections of that act the language is enlarged, and the words suit at law" .are used. The supreme court decided that under these words a suit could be removed notwithstanding the fact that tlie court could not have had original cognizance of it. Claflinv. insurance Co., 110 U. S. 81, 3 Sup. Ct. Rep. 507. To reverse-Gi' perhaps we should say to prevent-such construction in +-he future, the second section of the act of 1887--88 used the phraseology we have quoted.
to
or
BRISENDEN
v.
'CHAMBERLAIN.
309
What, then, is the meaning of this phrase, "suits of a civil nature at common law?" Mr. Justice Story; in Parsons v., Bedford, 3 Pet. 433, says: "This phrase 'common is used in contradistinction to equity, and admiralty and maritime jurisdiction. By 'common law' they meant what the constitution denominated in the third article 'law,' not merely suits wWch the common law recognized among its old alldsettled proceedings, but suits in which legal rights were to be ascertained and determined, in contradistinction to those where equitable rights alone were recognized, and equitable remedies were administered."
Commenting on this, Mr. Spear, in his Law of the Federal Judiciary, (page 23,) says: "The term 'law' and the phrase 'common law,' as thus used, then me.'tn precisely the same thing, and both have reference to legal remedies in distinction from such remedies as are applicable to cases in equity."
Mr.·Justice Bradley, in Gaines v. Fuentes, 92 U. S. 23, answering the questien what is meant by the phrase "suits of a civil nature at common law or equity," used in the section of the act of 1789 conferring original jurisdictio;n on the circuit courts, and of the word "suit," used in the subsequent section, giving the right of removal. says: "The phrase 'suits at common law,' and the corresponding term 'suit,' used in these sections, are undoubtedly of broad signification, and cannot be construed to embrace only ordinary actions at law, and ordinary suits in equity; but they must be construed to embrace all litigations between party and party which in the English system of jurisprudence, under the light of which the judiciary act as well as the constitution were framed, were embraced in nll the various formfl of procedure carried on in the ordinary courts of law and ('quity as distinguished from the ecclesiastical, admiralty. and military courts of the realm."
It seems manifest from these authorities that the phrase, "all suits of a civil nature at common law," does not mean and is not confined to suits which are based on rights which owe their origin to the common law as distinguished from rights created by statute. 'I'he phrase means all those suits in which the rights must be established and the remedies, sought by the procedure known and prevailing in the courts of law, as distin{,.'Uished from the procedure and the remedies prevailing in and administered by courts of equity,-that is, by a court and jury. This is the construction practically taken by the courts of the United States. We see, among many other instances, the court taking jurisdiction of a case arising under a state statute in Gordon v. Longest, 16 Pet. 103. And in Railway Co. v. Cox, 145 U. S. 594, 12 Sup. Ct. Rep. 905, the court enforced the provisions of the Louisiana statute, which is in the words of Lord Campbell's Act, in the circuit court of the United States for a Texas district. The right to do this is asserted in Dennick v. Railroad Co., 103 U. S. 11. The rule is well put in Ex parte McNiel, 13 Wall. 243, decided in 1871 : "A state law may give a substantial right of sueh a character that, where there is no impediment arising from the residence of the parties, the right may be enforced in the proper federal tribunals. whether it be a court of of admiralty, or of common law. The statute in such cases does not -confer jurisdiction. That exists already, and it is invoked to give etrect w
31:0 the ,.PPI,'()prlate I ,p$c1ple, may, be latcJ in our, nlttlonal A,party tqrteits by' gomg"lIl.tos. .tederal' tribunal. Jl1tiSdictIon ha v1D.'g attached,' his case Is tried there upon the same principles, and its determination is governed 'by the same Cj)Wltderatlons. as itlthad been brought in the proper Btate tribunal ot the same.to¢llllty." '
v.. Morton,. 99 U. S.378: "Whenev.er,Rstatute grants a new right, or a new remedy tor an old right, or whenever. such rights and remedies are on a state statute or an act 0 r ('ong-ress, the jurisdjction, as between the law stde and the equity side ot the feq,eral courts, must ,be determined by the essential character of the case. Unless lt ,oomes within Some of therecognlzed headsotequity jurisdiction, the remedy of the party Is at law." ,
2. ,The' next. ground upon which the motion to remand is based is that 'the' reaJ defendant, is the South Carolina RaiJ.way Company, and not the receiver, and that this railway company is a citizen of the lrt.M.e i off30uthOarolina.. It is an error to say that. the receiver is not a. in interest Perhaps the plaintitI coUld have sued the railwlttCOn1pally,'leave to that having been obtained, and the' injunction' of this' court modified accordingly. But a judgment in that event 'Would be" posterior in' lien to the n10rtgages on the property. The receiver has been sued in order to give the plaintift a. claim on the property and income' in· his hands. Ex, parte Brown, 158. O. 518; The receiver operating the railway is himself a common carrier, an(I :Ree. §398; Jones, By. Seeur. 511; ,Ex parte llrown, supra; Cowdrey v. Railroad Co., 93 U. S. 352; Murphyv. Holbrook, 20 Ohio St. 137. In any evellt, this court, having taken 'the property of· this' railroad, and in possession of it,at the mstance and on the behalf of the mortgage creditors, has appointed the receiver to hold, supervise, and control it. He represents ltecogirlzing this; the plaintifJ:has brought this action against him." Now, the jurisdiction of this court, when it is based ontha' citizenship of the parties,- depends upon the citizenship of the· parties to' the record, and not of those whom they may represent. Bonnafee v. Williams, 3 How. 574; Dill. Rem. Causes, § 101. 'i"Wherethe jurisdiction 'of the United States courts depends upon the citizenship of the parties, it has reference to ,the parties as persons. A petition for removal must therefore state the llersonal citizenship of the parties, and not their official citizenship, if there can be such a thing." Amory v. Amory, 95 U. S. 187. In Davies v. Lathrop, 12 Fed. Rep. 353, 854, "a receiver is a representative as much as anexeeutor, and his'personal citizenship will be regarded on a mo· tion to remand." 8ee, also, Spear, Fed. Jud. p. 151. 3. The next ground for this motion is that D. II. Chamberlain is a resident of the state of South Carolina. The removalltCt of 1887--88 provides that a case not arising under the constitution and laws of the United States,orullder treaties, of which circnitcourts of the United States otherwise might have jurisdiction, brought in a state court, may be removed by the defendant therein being a nonresident of that state. It is not easy to give asatiRfactory definition of this term, "resident." definra "resident" thu$ : "Dwelling or having abode, ,ina;ny place; l1ving, inhabiting, abidi,ng, residing.'"
BtUSENDEN
CHAMBERLAIN.
311
is not said to be ;t'l;lsident in a place. who comes· thither with a purpose of returning immediately." Ayliffe. R·eside: .To have abode, to live, to dwell, to inhabit, to sojourn. The Dictionary defines "resident" thus: "One who has a residence, in ,a legal sense." "Residence" (in law) is defined: "(a) The place where a man's habitation is fixed, without any present purpose of removing therefrom; domicile. (b) An established abode, fixed for a considerable time, whether with or without a present intention of ultimate removal. A man cannot :fix an intentional temporary domicile, for the intent to make it temporary makes it in law no domicile. The abode may be sufficiently fixed to make it in law a residence. In this sense a man can have two residences, but only onf' domicile. The bllnkruptcy law uses the term 'residence' specifically, aacontradistinguished from 'domicile,'so as to free. cases under it from. the difficult and embarrassing presumptions and circumstances upon which the distinction between 'domicile' and 'residence' rest, Residence is a fact ellSilyasoortained;domicile is a greater difficulty for proof. Though often used as synonymous, they haye in law two distinct meanings." Bump. The distinction between the terms "domicile" and "residence" is clearly set forth in the opinion of the supreme court of Massachusetts to the legislature. Supplement, 5 Mete. 587. ' " It will'be observed from these definitions that both the terms involve the idea of something beyond a tramdent stay in a place. To be a resident one must abide in a place; have his home there. The essential distinction between "residence" and "domicile" is this: The first involves the intent to leave when the purpose for which he has taken up his abode ceases; the other has no such intent, the abiding is animo manendi. One may seek a place for the purposes of pleasure, of business, or of health. If his intent be to remain, it becomes his domicile; if his intent be to leave as soon as his pur pose is accomplished, it is his residence. Perhaps the most saUs factory definition is that one is a resident of a place from whic1. his departure is indefinite as to time, definite as to purpose; and for this purpose he has made the place his temporary home. Apply these toO the facts of this case. Mr. Chamberlain has a. home in the state of New York, in which he and his family reside. voting precinct is in that state. He comes into South Carolina at intervals more or less irregular, puts up at an hotel, makes the examination into the eonduct of the railway company which he desires, and gives such instructions and directions as he sees fit. He then returns to New York. He does this at frequent intervals dUJ'ing the year. He 311ways stops at an hotel. He has no fixed abode, and has not around him in this state the semblance of a home. His business is that of a practicing lawyer. His ofrice is in New York city. The office and duties as receiver are aside of his regular employment, necessarily temporary in character, and subject to terminate at the will of thE' court. I am of the opinion that he is not in any sense a resident of this district. 4. That, the petition having been filed on the same day with the answer, the ·defendant has submitted himself to. the .jurisdiction of
312
RDEBAL REPORTER,vOl.
53.
the 'state .court, and cannot remove his cause. ThIs objection Ie anSwered by the words of the removal act. It is not a question groWmg out of a conflict of jnrisdiction. There is no conflict of jUriSdiction. Indeed, the case is one in which the jurisdiction of the state and of the federal courts is concurrent. The case can bett1.ed irl either court, but the defendant has the privilege of trial lnthe'federal court. This privilege is secured upon certain condi· tioI1s;and none other. He must make and file his petition for ramovalllithe suit at the time or any time before he is required by the lawso! the state or the rule of the state court to answer or plead to the complaint or declaration, 'and shall file therewith his bond. It shall'then be the duty of the' state court to accept said petition and bOnd) and proceed no further in" said suit. The suit, goes over into the federal court inthe same plight as it left the state court. Dill Rem: Causes, § 150. In this case the defendant complied with the letter '(jf the law, fulfilled the' only. condition required' of him, and under, the act his cause 'was thereupon removed. The motion to remand' is refused.
eotirta
PRICE
T.
PANKHURST et aJ.
(Circuit Court of A:ppeals, Eighth CirCUit.
November 1.1, 1892.)
"
No.
135.
'"UJJger rule 10 of the circuit court of appeals, .(47 Fed Rep. vi., 1 C. O. A. w1llch requires a party excepting'to a charge to tile jury "to state disiliictly the several n'latters of law in such charge to which he excepts," aIld' provides that those rnatters only "shall be inserted in 'the bill of ex· ceptions and allowed," an exception to "the whole of said,lnstruction, and to eacb and "every part thereof,'! cannot be sustained, it of the propositions of law contained in sucbcharge are sound '
EXCEPTION TO CHARGE-CIRCUIT COURT 011' ;ApPEALS.
In Error to the Oircuit'Oourt of the United States for the Dishicll of Oolorado. At Law. Action by Theodore Pankhurst and Frederick O. Schroeder against Thomas D. Price, to recover possession of a portion of a certain 'mining claim. Verdict andjud/:,'1llent for plaintiffs. Defendantbriugs error. Affirmed. Hem'Y;W" JIobson arid Henry M. Teller, (pattison" & HobsOD and Teller, on the brief,) for in error. R. So Morrison and Samuel W. Jones, for defendant8 in error. Before OALDWELL and SANBORN, Circuit Judgefl, and SHiRAS, DistrictJudge. .
CALDWELL, Circuit Judge. This action ,was brought to recover the possession of a portion of the ''Puzzle'' lode mining claim. There were · verdict and judgment below for the plaintiffs, and the defendant sued out this writ of error. The only assignments of error relied on ai-abased on the charge of the court to the jury. The charge cov· ers ftvecltisely printed pages in the record, and deals with the law and facts of the case applicable to the varying claims of the parti811.