Watertown republican. [volume] (Watertown, Wis.) 1860-1906, 1888-12-26
Aetcalf Us. City Of WatertoWn.
Supreme Court of the United States.
No. eo.-ocroBER TERM. 1883.

Supreme Court of the United States.
No. 90.-OCToBER TERM, 1888.
Psn n Error In cn df to the the GGus aas
The city OF Watertown District of w Wisconsin cousin
december 10, 1881
Mr.. Justice HARLAN delivered the opinion of
the Court.
This action was brought in the court below.
III the year 1893, to recover thesnm of Sl0 2O7 SO,
the amount of q judgment rendered NAYS 1866.
in the Circuit Court of the United States for the
District Of Wisconsin. in favor of Pitkin @.
Wright against the city of Watertown, mum.
cipal corporation of that state. The plaintiff ia
the present action, E. w. Metcaif is a citizen of
Ohio, and sues rs assignee ofcertan aamed .1r-
sons who became under assignments from
Wright IN 1873 the owners In different nronor
! tions, of that judgment
Although the question of the Jurisdiction of
the Circuit Court over the present suit was sug-
gested at the bar, the case was argued entirely
with reference to the construction and effect Of
the statute OF Wisconsin, prescribing in respect
20 causes of action accruing before November 1.
1878 ten years as the period within which must
be commenced IAN action upon judgment or
decree OF any court of record of anv state or ter
ritory within the United States, or of any court
of the United States" while twenty years was
hxod ny the snme statute, for the commence
ment OF IAN action uDon judgment or decree
of any court of record of this [that1 state" The
court below held the suit to be barred by the
limitation of ten years. r. ST Wssc 1865 G. 1873,
Wl. Ii. Is, l6: I'd. 1878. We are not, however,at
liberty to express any opinion upon the ques-
ton of limitation if the court, whose Judgment
has been brought here for review, does not ap-
pear, from the record, to have had Jurisdiction
of the case. And whether that courl had or had
not jurisdiction, is question which we must
examine and determine, even If the parties for
sidered upon its merits Mansfield dc. Rdil,Uay
CIR. V. Ssvdn, Ill, u S. 379, 3S2 King Bridge Co. "
Otoe County, 12O u s. 22J; Blackjack v. small 127
U. S. 96, l05; Cameron v. Hodges, 1877 U >. 322,
326.
BY the act of March 8. 1s75 (1S Stat 47o, c. 1879
determining the jurisdiction OF the Circuit
Courts of the United States it is provided that
no Circuit or District Court of the United States
shall "have cognzance of any suit founded on
contract in favor of an assignee unless b 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
/ This suit certainly does not belong to the ex-
cepted class and being founded on the original
| judgment against the city, is one founded on
| contract within the meaning of the act By
the very terms. therefore, Metcalfs right to sue
in the Circuit Court depends upon the right of
! his assignors to have brought suit in that court
| if no assignment had been made. This vi w is
| fatal to the jurisdiction of that court so far as
| its Jurisdiction depends upon the above proyi-
sion of the statute, because it nowhere appears
| in the record os what state the plaintiffs as.
| sigaors were citizens when this action was com
| record
that they were, at that time citizens of the same
state with the defendant Walker v. Po,oers. 1O4
y s. 245, z4s; Continental ms. Co. v Rhoads, ll9
| U. s. 237. 239; Peper v. Forduce 119 IT, s. 469 All:
Euvroart " Huntsville Coueqe i2O U. s. 223: Me
nard V. Goggan, III u s. 253; and the cases before
cited.
Nor can the Jurisdiction of the Circuit Court
be maintained upon the theory that this suit is
one arising under the Constitution or laws of the
/ Uuited States. The fact that it was brought to
! recover the amount of judgment of a court OF
Z hn ITr1tQ Qd SfQf Hnnc Of
suit of that character, for the pantiff wit ho n,
raising by his complaint any distinct question ot
Federal nature, and without Indicating by
proper averrment, how the determination of a ny
! question ofthat character is involved in the case
| seeks 10 enforce an ordinary right of property
| by suing upon the Judgment merely as a security
| of record, showing deb: due from the citv n
! Watertown Provident savings Society V, Ford
| ia U. $. 635, 641 The plaintiff, it IL true con
tends that the limitation of ten years could NOT
consistently with the Constitution of the United
States, be applied to ali action upon judgment
or decree of d court OF the United States when
| q longer period was given within which tn sue
upon a judgment or decree of court of record
| established by the laws of Wisconsin. And II
the plaintiff properly invoked tie original iuris
diction of the Circuit Court of the United States
| in respect to the cause of action set out in his
| complaint, the question of limitation, under one
! construction Of the local statute. would be de-
cisive of the case. But is the present suit, there
| fore, one arising under the constitution or the
| laws of the United States, within the meaning OF
] the act of 1875? We think lot.
Ii has been often decided by this court that 8
suit may be said to arise unde, the Constitution
| or laws Of the United States. within the mean.
ing of that act. even where the federal oues-
| ton upon which it depends is raised. for the
| first time in the suit, by the answer or plea OF
the defendant. But these were removal cases in
| each of which the grounds of federal iurisdic-
t1On were disclosed either IN the pleadings or il
| the petition affidavit for removal in other
words, the case, at the time the jurisdiction of
| the circuit court OF the United States attached
! by removal, clearly presented a question OF
! questions of Federal nature. Railroad Co v
Mississippi, 1O2 S. 1885, 40, Ames Kansas, IL
| U. S. 449, 46", Pacific Railroad Removal Cases
| lis, U. S. l. H. Southern Pacific E. Co. v. Cali.
/ fornia, lis . s. 100, H. Besides, the right O
removal under the act of 1875 could not be made
to depend upon preliminary inquiry as to
| whether the plaintiff had or had not the right to
sue in the State court of original jurisdiction
! from which it was sought to remove the suit
/ Where, however, the original jurisdiction of 8
| Circuit Court of the United States is invoked up-
! on the sole ground that the determination of the
/ suit depends npOn some question of q Federal
nature, it must appear at the outset, from the
declaration or the bill of the party suing that
| the suit is of that character, in other words II
must appear, in that class of cases. that the suit
was one of which the Circuit Court, at the time
| its jurisd ction Is invoked. could properly take
| cognizance. If it does not so oappear then the
court upon demurrer, or motion, or upon its
own inspection ofthe pleading must dismiss the
suit. just as 1t wonld remand to the State court
| suit which the record, at the time of removal
failed to show was within the Jurisdiction of the
Circuit Court 1t cannot retain it In order to see
whether the defendant may not raise some cues
| ton OF Federal nature upon which the right o
recovery will finally depend and if SO retained
the want of Jurisdiction at the commencement,
| of the suit. is not cured by an answer or plea
! which may suggest question of that kind II
the city had not answered in the present suit and
| judgment by default had been rendered agains
| 1t, this court, upon writ of error. would have
been compelled to reverse the judgment, upon
| the ground that the record did not show i1ris-
| diction in the Circuit Court.
It results that, from any view of the ease as
presented by the record. II is one in respect TO
which the plaintiff could not, under the act of
1875. invoke the original jurisdiction Of the Cir.
cult Court. The judgment must, therefore, be
| reversed and tha cause remanded with directions
for such further proceedings as may be consist
ent with law, the plaintiff In error to pay the
costs In this court. 1t will be for the court below
to determine whether the pleadings can be 30
amended as to present case within its jurlsdic-
| ton. King Bridge Co. v. Otoe County, 120 u s.
| 225, z27, Menard v. Goggan, 121 q. 8. 253.
| True copy. Reversed.
| Test: Clerk Supreme Court u. S
The Beaver Dam Citizen says a