The Federal Reporter with Key-Number Annotations, Volume 250: Cases Argued and Determined in the Circuit Courts of Appeals and District Courts of the United States, August-October, 1918. Page: 703
xv, 1025 p. ; 23 cm.View a full description of this legislative document.
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GUARANTY TRUST CO. OF NEW YORK V. MCABE
Some confusion has arisen in the interpretation of the Tobin and
Nicola Cases. It has been thought by some (for instance, in Sagara
v. Chicago, R. I. & P. Ry. Co. [C. C.] 189 Fed. 220) that the holding
in the Tobin and Nicola Cases was based on the proposition that man-
damus was not the proper remedy; but neither the opinion in the
Tobin Case nor the chronological history of the cases of Matter of
Tobin, Nicola, and Ex parte Harding, 219 U. S. 363, 31 Sup. Ct. 324,
55 L. Ed. 252, 37 L. R. A. (N. S.) 392, justify this conclusion. Ex
patte Harding, supra, was submitted and decided after the Tobin and
Nicola Cases. In Ex parte Harding the court frankly disapproved
Ex parte Wisner so far as that case held mandamus to be the proper
remedy. Surely, if the Supreme Court had come to this conclusion
when it decided the Tobin and Nicola Cases, it would have so stated.
An examination of the record in the Tobin Case confirms what the
brief opinion of the court upon analysis makes clear. In that case, as
well as in the Nicola Case, plaintiff was an alien. The only District
Court where Tobin or Nicola could have brought suit originally was
where the respective defendants were inhabitants. It will be noted
that section 51 of the Judicial Code makes two classifications, as fol-
lows:
(1) "And, except as provided in the six succeeding sections, no civil suit
shall be brought in any district court against any person by any original pro-
cess or proceeding in any other district than that whereof he is an inhabit-
ant."
(2) "But where the jurisdiction is founded only on the fact that the action
is between citizens of different states, suit shall be brought only in the dis-
trict of the residence of either the plaintiff or the defendant."
As Tobin and Nicola were not citizens, the second classification did
not apply to their cases.
There was therefore but one district where the respective defend-
ants in Tobin and Nicola could be sued, i. e., the district whereof they
were respectively inhabitants. The alien plaintiff could select no oth-
er, and, if the defendants chose to waive this privilege or right, nei-
ther the statute nor any judicial construction thereof conferred upon
these alien plaintiffs any right to object. On the other hand, where
the parties are citizens of different states and the action is founded
only on that fact, the statute clearly authorizes the bringing of the
suit in one of two places, i. e., the residence of the plaintiff or the de-
fendant, and, as held in Ex parte Moore, supra, when the suit is
brought elsewhere, either plaintiff or defendant has the right to object
to removal on the ground that such removal takes the cause to a dis-
trict other than the residence of the plaintiff or defendant.
The majority of the court therefore is of opinion that the Tobin and
Nicola Cases did not in any manner affect nor relate to the point de-
cided by Ex parte Moore, supra, but were concerned with the con-
sideration of an entirely different part of section 51 of the Judicial
Code from that necessarily considered in Ex parte Moore, supra. Fi-
nally, it may be added that, if the Supreme Court had intended to dis-
approve Ex parte Moore, it may be assumed that it would have so
stated, particularly as in Ex parte Moore and Ex parte Harding the
court did not hesitate to point out certain respects in which it discard-
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The Federal Reporter with Key-Number Annotations, Volume 250: Cases Argued and Determined in the Circuit Courts of Appeals and District Courts of the United States, August-October, 1918., legislative document, 1918; Saint Paul, Minnesota. (https://digital.library.unt.edu/ark:/67531/metadc38821/m1/718/: accessed April 25, 2024), University of North Texas Libraries, UNT Digital Library, https://digital.library.unt.edu; crediting UNT Libraries Government Documents Department.