# In re Pollitz/Opinion of the Court

* Court Documents
* Case Syllabus
* Opinion of the Court
United States Supreme Court
206 U.S. 323
In re Pollitz
Argued: April 8, 1907. --- Decided: May 27, 1907
The suit was commenced in the state court by a citizen and resident of the city, county, and state of New York, against a corporation, a citizen of the state of Ohio, and other defendants, many of whom were residents and citizens of the state of New York, the value of the matter in dispute, exclusive of interest and costs, exceeding the jurisdictional sum.
The defendant the Wabash Railroad Company, a citizen of Ohio, filed its petition and bond in proper form for the removal of the suit into the United States circuit court for the souther d istrict of New York, on the ground of separable controversy so far as it was concerned, and it was removed accordingly. A motion to remand was made and denied by the circuit court, which held that the controversy was separable, and that the other defendants were not indispensable or necessary parties to the complete determination of that separable controversy.
The issue on the motion to remand was whether such determination could be had without the presence of defendants other than the Wabash Railroad Company, and this was judicially determined by the circuit court, to which the decision was by law committed.
The application to this court is for the issue of the writ of mandamus directing the circuit court to reverse its decision, although in its nature a judicial act, and within the scope of its jurisdiction and discretion.
But mandamus cannot be issued to compel the court below to decide a matter before it in a particular way or to review its judicial action had in the exercise of legitimate jurisdiction, nor can the writ be used to perform the office of an appeal or writ of error.
Where the court refuses to take jurisdiction of a case and proceed to judgment therein, when it is its duty to do so and there is no other remedy, mandamus will lie unless the authority to issue it has been taken away by statute. Re Grossmayer, 177 U.S. 48, 44 L. ed. 665, 20 Sup. Ct. Rep. 535; Re Hohorst, 150 U.S. 653, 37 L. ed. 1211, 14 Sup. Ct. Rep. 221. And so where the court assumes to exercise jurisdiction on removal when, on the face of the record, absolutely no judisdiction has attached. Virginia v. Paul, 148 U.S. 107, 37 L. ed. 386, 13 Sup. Ct. Rep. 536; Ex parte Wisner, 203 U.S. 449, 51 L. ed. 264, 27 Sup. Ct. Rep. 150.
'In Re Hohorst, supra, the bill was filed in the circuit court of the United States for the southern district of New York against the corporation and certain other defendants, and was dismissed against the corporation for want of jurisdiction. From that order complainant took an appeal to this court, which was dismissed for want of jurisdiction because the order, not disposing of the case as to all the defendants, was not a final decree from which an appeal would lie. 148 U.S. 262, 37 L. ed. 443, 13 Sup. Ct. Rep. 590. Thereupon an application was made to this court for leave to file a petition for a writ of mandamus to the judge of the circuit court to take jurisdiction and to proceed against the company in the suit. Leave was granted and a rule to show cause entered thereon, upon the return to which the writ of mandamus was awarded.' Re Atlantic City R. Co. 164 U.S. 633, 41 L. ed. 579, 17 Sup. Ct. Rep. 208.
In Ex parte Wisner, Wisner, a citizen of the state of Michigan, commenced an action at law in the circuit court for the city of St. Louis, state of Missouri, against Beardsley, a citizen of the state of Louisiana. After service of summons on Beardsley, he filed his petition to remove the action from the state court into the circuit court of the United States for the eastern district of Missouri, on the ground of diversity of citizenship, with the proper bond, and an order of removal was made by the state court, and the transcript of record was filed in the circuit court. Wisner (who had had no choice but to sue in the state court) at once moved to remand the case, on the ground that the suit did not raise a controversy within the jurisdiction of the circuit court, and that, as it appeared on the face of the record that plaintiff was a citizen and resident of Michigan, and defendant a citizen and resident of Louisiana, the case was not one within the original jurisdiction of the circuit court, in accordance with the statute providing that where 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 motion to remand was denied, and Wisner applied to this court for a writ of mandamus, which was suse quently awarded.
In the present case the removal was granted and sustained on the ground that there was a controversy between the removing defendant and plaintiff, which could be fully determined as between them without the presence of the other defendants. That being so, the suit might have been brought originally in the circuit court against the railroad company as sole defendant.
If the ruling of the circuit court was erroneous, as is contended, but which we do not intimate, it may be reviewed after final decree on appeal or error. Missouri P. R. Co. v. Fitzgerald, 160 U.S. 556, 582, 40 L. ed. 536, 542, 16 Sup. Ct. Rep. 389.
Rule discharged; petition dismissed.

## Notes

This work is in the public domain in the United States because it is a work of the United States federal government (see 17 U.S.C. 105).
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