Ex parte Wisner

by Melville Fuller

United States Supreme Court

203 U.S. 449

Ex parte Wisner

 Argued: May 14, 1906. --- Decided: December 10, 1906

Abram C. Wisner, a citizen of the state of Michigan, commenced an action at law, on February 17, A. D. 1906, in the circuit court in and for the city of St. Louis and state of Missouri, against John D. Beardsley, a citizen of the state of Louisiana, by filing a petition, together with an affidavit on which that court issued a writ of attachment, in the usual form, directed to the sheriff of St. Louis. The sheriff returned no property found, but that he had garnisheed the Mississippi Valley Trust Company, a corporation of Missouri, and also had served Beardsley with summons in the city of St. Louis.

Saturday, March 17, A. D. 1906, the garnishee answered, and on the same day Beardsley filed his petition to remove the action from the state court into the circuit court of the United States for the eastern division of the eastern district of Missouri, on the ground of diversity of citizenship, together with the bond required in such case. An order of removal was thereupon entered by the state court and the transcript of record was filed in the circuit court of the United States.

Monday, March 19, Wisner moved to remand in these words:

'Now at this day comes plaintiff, by his attorneys, Jones, Jones, & Hocker, and appearing specially for the purposes of this motion only, saving and reserving any and all objections which he has to the manifold imperfections in the mode, manner, and method of the removal papers, and expressly denying that this court has jurisdiction of this cause, or of the plaintiff therein, respectfully moves the court to remand this cause to the circuit court of the city of St. Louis, from whence it was removed, for the reason that this suit does not involve a controversy or dispute properly within the jurisdiction of this court, and that it appears upon the face of the record herein that the plaintiff is a citizen and resident of the state of Michigan and the defendant a citizen and resident of the state of Louisiana, and the cause is not one within the original jurisdiction of this court; hence this court cannot acquire jurisdiction by removal.'

The motion was heard and denied April 2, 1906, the circuit court referring to Foulk v. Gray, 120 Fed. 156, and Rome Petroleum & Iron Co. v. Hughes Specialty Well Drilling Co. 130 Fed. 585, as representing the different views of the courts below on the question involved.

On April 23, Wisner applied to this court for leave to file a petition for mandamus as well as a petition for prohibition; leave was granted, and rules entered, returnable May 14, 1906, and the cases submitted on the returns to the rules.

Messrs. J. J. Darlington, James C. Jones, H. S. Mecartney, G. G. B. Drummond, Oliver & Mecartney, and Jones, Jones, & Hocker for petitioner.

[Argument of Counsel from pages 450-454 intentionally omitted]

Messrs. John M. Moore, Edward C. Eliot, and George H. Williams for respondent.

Mr. Chief Justice Fuller delivered the opinion of the court:

Notes