Case 34 — Action by John Whitworth, an Employe against ti-ie I. C. R. R. Co. to Recover Damages por Personal Injury.

March 24.

#### Illinois Central R. R. Co. v. Whitworth.

APPEAL PROM M’CRAOKEN CIRCUIT COURT.

Judgment por Plaintipp and Dependant Appeals.

Reversed.

[On rehearing former opinion affirming withdrawn and judgment below reversed. For former opinion, see 24 R., 2044; 70 S. W., 657.]

Removal op Causes — (Diverse Citizenship — Non-residence op Both Parties.

Held: 1. Under Act of Cong., August 13, 1888, section 2, 25 Stat, 435 [U. S. Comp. St., 1901, p. 509], providing that suits of which the Federal circuit courts are given jurisdiction, brought in any State court, may be removed into the Federal circuit court for the proper district of the defendant or defendants therein being non-residents of the State, a suit between citizens of different States may be removed to the Federal court, though neither party is a resident of the State where the suit is brought.

QUIGLEY & QUIGLEY and PIRTLE & TRABUE, por appellant.

HENDRICK & MILLER, pob appellee.

(No briefs.)

Opinion op the court by

CHIEF JUSTICE BURNAM

Reversing.

In the petition for rehearing in this case our attention is called to the fact that, in the decision heretofore rendered in 24 R., 2044, 70 S. W., 657, we failed to pass upon the validity of the motion of the defendant to transfer the case from the McCracken circuit court to the United States circuit court for the Western District of Kentucky In response to this contention it is proper for ns to say that we did not overlook the fact that this question was presented by the record, but, as counsel for appellant in their brief did not *287rely upon this alleged error of the circuit court as a ground for reversal, but were content to rest their contention wholly upon the merits of the case, we concluded that they did not desire upon this appeal to rely upon that ground, but it seems from their petition for rehearing that we have misconstrued the purpose of counsel, and they now insist upon a decision upon that point. The plaintiff, a citizen of Tennessee, as he alleges in his petition, brought this suit in the McCracken circuit court against the defendant, whom he alleges is a citizen of Illinois, to recover a sum in excess of $2,000. The defendant tendered and filed its petition and bond for removal to the United States circuit court for the Western District of-Kentucky upon the ground of diverse citizenship, but the McCracken circuit court decided that no ground for removal existed, and thereupon the defendant, under protest, answered, and made defense. The trial resulted in a verdict and judgment for the plaintiff. In the meantime a copy of the record in the McCracken circuit court was filed by the defendant in the United States circuit court for the Western District of Kentucky, and the plaintiff appeared in that court, and asked that it be remanded to the State court for trial, basing its claim to this relief upon the provision of section 1 of the act of August 13, 1888, 25 Stat., 438 [U. S. Comp. St. 1901, p. 508]. The motion to remand in the federal court was overruled.

Article 3, section 2, of the Constitution of the United States, defines the extent of judicial power which may be conferred upon- courts of the United States as follows: “The judicial power shall extend to all cases in law or equity arising under this Constitution, the laws of the United States, and treaties made, or which shall be made, under their authority; to all cases affecting ambassadors, or other *288public ministers and consuls; to all cases of admiralty, or maritime jurisdiction; to controversies to which the United States shall be a party; to controversies between different States, between a State and citizens of another State, between citizens of different States,- between citizens of the State claiming lands under grants of different States, and between a State, or the citizens thereof, and foreign States, citizens or subjects.” The enforcement -of this provision of the federal Constitution was for a very long time controlled by Judiciary Act 1789, section 11, 1 Stat., 78. But other acts were passed from time to time by the Congress of the United States conferring upon the circuit courts of the United States various special jurisdictions, but the present general right to remove a suit from a State to a circuit court of the United States-is governed by section 2 of the act of 1875, as amended!, by the acts of 1887 and 1888 [U. S. Comp. St. 1901, p. 509]. An interesting history of these various acts is found- in “Moore on Removal of Causes.” The second section of the act of 1875, as amended by the act of 1887, reads as follows: “When in any suit mentioned in this section there shall be a controversy, which is wholly between citizens of different Slates and which can be fully determined between them, then either one of some of the defendants, actually interested in such controversy, may remove such controversy to the Circuit Court of the United States for the proper district.” And section 1 of the act of August 13, 1888 (25 Stat., 434 [U. S. Comp. Stat. 1901, p. 508]), amending the act -of 1875, provides: “The District and Circuit Courts of the United States shall have original cognizance, concurrent with the courts of the several States, over all suits of a civil nature at common law or in equity, . . . in which there shall be a controversy between cit*289izens of different States, in which the matter in dispute exceeds, exclusive of interest and costs, the value of” $2,-000. And the act further provides that 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 when the jurisdiction is founded only on the fact that the action is between citizens of different States, suits shall be brought only in the district of the residence of either the plaintiff or the defendant. The second section of the same act (25 Stat., 435 [U. S. Comp. St. 1901,' p. 509]), provides that: “Any suits 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 Court of the United States for the proper district of the defendant or defendants therein being non-residents of this State.” As neither of the par-lies to tMs action are citizens or inhabitants of Kentucky-, it is contended, under section 2, that the case is not removable, and appellees refer to Shaw v. The Mining Co., 145 U. S., 144, 12 Sup. Ct., 935, 36 L. Ed., 768, and Railroad Co. v. Davidson, 157 U. S., 201, 15 Sup. Ct., 563, 39 L. Ed., 672. The question decided in the first case was that a corporation created by one State did not become a resident ;«f another for jurisdictional purposes by establishing a place of business therein. And in the second it was decided that an action by an assignee, where an assignor could not maintain his suit in .a federal court, was not removable. In the case of the Central Trust Co. v. McGeorge, 151 U. S., 133, 14 Sup Ct., 286, 38 L. Ed., 98, it was held that exemption from being sued out of the district of its domicile was *290a privilege which a corporation might waive, and which was waived by pleading to the merits of the controversy without objection. But the case clearly recognizes- the right of transfer to the federal court where the citizenship of the parties is diverse. And this case seems to be in accord with the current of the recent decisions of the federal court on this question. See Cowell v. Supply Co. (C. C.), 96 Fed., 769; Creagh v. Society (C. C.), 83 Fed., 849; Duncan v. Associated Press (C. C.), 81 Fed., 417; Long v. Long (C. C.), 73 Fed., 369; Sherwood v. Mississippi Valley Co. (C. C.), 55 Fed., 1; Amsinck v. Balderston (C. C.), 41 Fed., 643; Uhle v. Burnham (C. C.), 42 Fed., 1; Burck v. Taylor (C. C.), 39 Fed., 581; Kansas City & T. R. Co. v. Interstate Lumber Co. (C. C.), 37 Fed., 3; First Nat. Bank v. Merchants’ Bank (C. C.), 37 Fed., 657, 2 L. R. A., 469; Hulbert v. City of Topeka (C. C.), 34 Fed., 511; Wilson v. Telegraph Co. (C. C.), Id., 561; Fales v. Railroad Co. (C. C.), 32 Fed., 673. And Judge Dillon, in his well-approved work on Removal of Causes (section 96), says: “At first it was held that, if the action was brought against a defendant in a district of which he was- not an inhabitant, so that the federal court would not have originally had jurisdiction of it under the first section of the act, it could not be removed under the second section. But this position was soon abandoned. It was next considered that, while the right of removal might depend upon the capacity of the particular federal court to entertain original jurisdiction of the suit sought to be removed, yet the statute permitted the plaintiff to sue the- -defendant in the federal district of the plaintiff’s own residence as well as in that of which the defendant was an inhabitant, where the federal jurisdiction depended only on the fact of diverse citizenship of the parties; and therefore such a suit was removable by the de*291fendant if brought in the State court of the plaintiff’s own State. But this rule was in turn superseded by a more- liberal doctrine. It came to be perceived that the restrictive language of the first section of the act was referable only to suits commenced in a federal court by original process or proceeding, and had no application to suits removed from State courts, and that the word ‘jurisdiction’ in the clause in the section relating to suits of which the federal court may have original jurisdiction is not to be taken in the narrow sense of certain territorial limits, but in a wider sense, meaning jurisdiction over^ the whole class of cases enumerated in the statute. Accordingly, it is now well settled that, where the parties are citizens of different 'States, and the other conditions of removability are satisfied, the cause may be removed to the federal court, notwithstanding the fact that neither plaintiff nor defendant is a citizen or resident of the State where the suit is brought, or of the district within the territorial jurisdiction of the federal court to which it is to be transferred.”

It is 'evident that under the section of the Constitution quoted supra the Congress of the United States is authorized, where there is' a controversy between citizens of different States, to confer jurisdiction for the determination of such controversy upon the federal courts, and to provide for the removal of suits involving such an issue from the State to the federal courts And a careful review of. the decisions .of the federal courts construing the statute regulating this question has satisfied us that the circuit court of McCracken county had no jurisdiction to hear and determine this controversy after the defendant had complied with the provisions of the federal statute, and had petitioned for its -removal. Nor was the right of transfer waived by the defendant in pleading under protest to the *292issue in the State court. See National S. S. Co. v. Tugman, 106 U. S., 122, 1 Sup. Ct., 58, 27 L. Ed., 87.

For reasons indicated, the opinion heretofore delivered is withdrawn, and the judgment is reversed, and cause remanded for proceedings consistent with this opinion.