Grogan, John M.

English

Santa Ana, Manuel María de, 1820-1894

Biblioteca Virtual de Prensa Histórica (Virtual Library of Historical Newspapers)

La Correspondencia de España  : diario universal de noticias: Año XXXIII Número 8693  - 1882 enero 9

La Correspondencia de España  : diario universal de noticias: Año XXXIII Número 8690  - 1882 enero 6

Marquette University Law School

Marquette Law ReviewVolume 35Issue 3 Winter 1951-1952 Article 8Practice - Estoppel to Deny Jurisdiction of FederalCourt After Removal Without RightJohn M. GroganFollow this and additional works at: http://scholarship.law.marquette.edu/mulrPart of the Law CommonsThis Article is brought to you for free and open access by the Journals at Marquette Law Scholarly Commons. It has been accepted for inclusion inMarquette Law Review by an authorized administrator of Marquette Law Scholarly Commons. For more information, please contactmegan.obrien@marquette.edu.Repository CitationJohn M. Grogan, Practice - Estoppel to Deny Jurisdiction of Federal Court After Removal Without Right, 35 Marq. L. Rev. 308 (1952).Available at: http://scholarship.law.marquette.edu/mulr/vol35/iss3/8MARQUETTE LAW REVIEWExcept for the Massachusetts case which requires a "labor marketmonopoly" before granting relief, it appears that even in states not hav-ing statutes to protect the right to work a man can obtain relief againsta union holding a closed shop contract that will not grant him member-ship.LEO M. McDONNELLPractice-Estoppel to Deny Jurisdiction of Federal Court AfterRemoval Without Right-Plaintiff, a citizen of Texas, brought ac-tion in a state court of Texas against the American Fire and CasualtyCompany, a Florida corporation, the Indiana Lumbermen's Mutual In-surance Company, an Indiana corporation, and one Reiss, her insurancebroker, who was also a citizen of Texas, to recover in the alternativeon one of the two insurance policies or from Reiss for damage to herhouse caused by a fire. The action was removed to the United StatesDistrict Court on the petition of the two insurance companies wherejudgment was entered against the American Fire and Casualty Companywhich then appealed. Held: There was no right of removal under 28U.S.C.A. §1441, and the defendant was not estopped from protestingthe lack of jurisdiction of the district court although it itself had in-voked it. American Fire & Casualty Co. v. Finn, 71 S.Ct. 534 (1951).The Supreme Court in reviewing this code section on certiorariheld that there was no right of removal since there was no diversity ofcitizenship between the plaintiff and one of the defendants, Reiss, andno "separate and independent claim or cause of action which would beremovable if sued upon alone," the plaintiff having suffered only onewrong and being entitled to only one relief. The question then arosewhether a defendant who had removed a suit to a federal court wasestopped from appealing from an adverse judgment on the groundsthat the court was without jurisdiction to render a judgment becausethere was no right of removal.As a rule the parties before the court may waive a lack of jurisdic-tion over their persons and proceed to trial as long as the court hasjurisdiction over the subject matter of the suit. The party invokingthe jurisdiction is then concluded by the judgment and estopped to pro-test the jurisdiction of the court.1 Thus when the parties removing asuit to a federal court have no right to remove it since they do not comewithin the provisions of 28 U.S.C.A. §1441, the court may retain theaction if it would have had original jurisdiction of it.2 This occurswhen a party is sued in his home state by a non-resident. In such case,14160 A.L.R. 918.2 HanleyMack v. Godchaux, 2 F. (2d) 435, 437 (6th Cir., 1924).[Vol. 35RECENT DECISIONShe has no right of removal because he is a resident of the state in whichthe action is brought, but the diversity of citizenship would give thefederal court original jurisdiction. In such case the party against whomjudgment is rendered is held estopped from protesting the right of re-moval since the estoppel does not attempt to endow the federal courtwith jurisdiction it could not otherwise possess.3On the other hand if a court does not have jurisdiction of the sub-ject matter of an action, consent of the parties will not give it jurisdic-tion.4 In such case it is immaterial how the lack of jurisdiction cameto the knowledge of the court and it is no valid objection that the partyprotesting the jurisdiction was also the one who invoked it.5 Thus ifthe federal court would not have had original jurisdiction of the cause,the party removing it without right is not estopped from later protest-ing the lack of jurisdiction of the court. The principle behind this rul-ing is that the judicial power of the United States has been preciselydefined in the Constitution and must not be extended even though allparties to a case desire it.6 It is the duty of the court to see that it hasjurisdiction, and it is an error to render a judgment in a case to whichits jurisdiction does not extend.7 Although a judgment will not be re-versed for an error in process which was to the advantage of the ap-pellant, an error to his advantage relating to the jurisdiction of the sub-ject matter must be rectified by the court.8Thus in some cases the dispute may resolve itself as to whether thefederal court would have had original jurisdiction of the cause. In theprincipal case Mr. Justice Reed, expressing the majority opinion, statesthat the federal court would at no time have had original jurisdictionof the suit since Reiss was present at the time of judgment and the judg-ment finally adjudicated the merits of the litigation against him.9 Onthe other hand, Mr. Justice Douglas, dissenting, believes that sincejudgment was found against the American Fire and Casualty alone andReiss was dismissed, the effect is the same as if the plaintiff had broughtthe suit in the district court against the insurance company alone, inwhich case the court would have had jurisdiction.0 The weight of hisreasoning lies in the fact that the petitioning insurance company itselfoccasioned the removal of the suit. Judgment was found against italone, and it is not a resident of the state where the action was brought.'Baggs v. 'Martin, 179 U.S. 206, 21 S.Ct. 109, 45 L.Ed. 155 (1900).4Peoples Bank of Belleville v. Calhoun, 102 U.S. 256, 260-261, 26 L.Ed. 101(1880) ; see Baggs v. Martin, supra, note 3.5 Supra, note 1.Mansfield C. & L.M.R. Co. v. Swan, 111 U.S. 379, 383, 4 S.Ct. 510, 512, 28L.Ed. 462 (1884).7 Wildman v. Rider, 23 Conn. 172, 176 (1854).s Capron v. Van Noorden, 2 Cranch 126, 2 L.Ed. 229 (1804).9 28 U.S.C. §1332, 28 U.S.C.A. §1332 (1948).10 Ibid.1952]MARQUETTE LAW REVIEWHence the fact that one of the defendants was a resident of Texas is amere irregularity as to it, and to permit it to raise such an irregularityafter it has consented to it and permitted judgment to ensue wouldseem abusive of ordinary concepts of justice.In reaching this conclusion Mr. Justice Douglas follows Bailey v.Texas Co." However the facts in that case were somewhat differentfrom the case at hand. Again there was no diversity of citizenship be-cause one of the defendants was a resident of the state where the actionwas brought. A non-resident defendant obtained removal to a federalcourt where the resident defendant appeared, but the complaint wasdismissed as to it before the issues were put to the jury. Appealing froman adverse verdict, the non-resident defendant raised the question ofthe jurisdiction of the federal court. It was held that there was no rightof removal since there was no diversity of citizenship, but the court said:"We need not consider whether the actions against the steamshipcompanies were ever before the District Court; they were dis-missed, and the plaintiff has not appealed.' 12Thus the court in that case seemed to base its reasoning on the fact thatat the time of judgment there was diversity of citizenship. Hence Mr.Justice Douglas' proposal that a non-resident defendant should beestopped to protest the right of removal as long as judgment was notrendered against a resident defendant would be a new step towardswidening the estoppel doctrine, and the majority ruling that there canbe no estoppel when the federal court would not have had original jur-isdiction of the suit at the time of judgment more clearly follows theline of previously decided cases.JOHN M. GROGAN11 Bailey v. Texas Co., 47 F. (2d) 153 (2d Cir., 1931).' 2 bid, p. 155.[Vol. 35