TOLEDO, ST. L. & W. R. CO. v. PERENCHIO, 205 F. 472

BAKER, Circuit Judge. This writ of error is brought to reverse a judgment for personal injuries suffered by plaintiff (defendant in error) through .the negligence of defendant. Pleadings on which the cause of action was submitted, evidence, instructions, verdict, and judgment had to do with a controversy between plaintiff and defendant alone.

All assignments of error relating to the merits of that controversy were abandoned at the argument. ■ Defendant relies solely upon a contention that an inseparable controversy between plaintiff on the one side and the defendant and another corporation on the other was improperly removed from a state court. Plaintiff, a citizen of Illinois, was a night passenger at East St. Louis, Ill., on a street car of the Suburban Company, an Illinois corporation. Tracks of the Suburban Company and of defendant, an Indiana corporation, cross at right angles.

While the street car was making the crossing, defendant backed a freight train against the street car, without sounding whistle or bell, without light, and without a lookout at the rear of the train or at the crossing.

In an Illinois court plaintiff filed a declaration against both companies, charging that the collision occurred and'her injuries, were inflicted by reason of “the joint negligence” (in one count) or “the combined and concurring negligence” (in other counts) of the present defendant and the Suburban Company. .Defendant obtained an order of removal into the federal court on the ground of separable controversy. At the start of the trial plaintiff dismissed the Suburban Company and presented against this defendant alone.a declaration in which the separate conduct of defendant was exclusively counted upon.

Defendant, without objecting that it was not in court to litigate that separate cause of action, proceeded with the trial, cross-examined plaintiff’s witnesses, moved for a directed verdict, introduced its own evidence, renewed its motion for a verdict, requested instructions, and .moved for a new trial on the merits. Granting that, within the authority of Alabama Southern Ry. Co. v. Thompson, 200 U. S. 206, 26 Sup. Ct. 161, 50 L. Ed. 441, 4 Ann. Cas. 1147, Chesapeake, etc., Rid. Co. v. Dixon, 179 U. S. 131, 21 Sup. Ct. 67, 45 L. Ed. 121, Whitcomb v. Smithson, 175 U. S. 635, 20 Sup. Ct. 248, 44 L.

Ed. 303, and Offner v. Chicago & E. Rld. Co., 148 Fed. 201, 78 C. C. A. 359, the case filed in the state court presented only inseparable controversies, only a joint.cause of action against the two defendants therein, no several cause of action against the present defendant alone, we do not think it follows that the judgment on.review should be reversed.

We come at once to the heart of the matter by supposing'that the state court case had been remanded to, or had never been removed from, the state court, and then inquiring: Would the pendency of that case, or a finding therein that plaintiff’s injuries were not inflicted by the joint acts of defendant and..the Suburban Company, preclude plaintiff from prosecuting a separate case against defendant as the sole causer of her injuries? That question seems to us to carry-its own answer.

In the declaration that was litigated the averments of the wrong, of.the amount in controversy,-and of the citizenship of the parties affirmatively and clearly presented a subject-matter that the federal court had lawful authority to hear. Diversity of citizenship was a part of the subject-matter. In addition to the.subject-matter being of a kind that the federal court had jurisdiction to entertain, it was necessary that the federal court acquire jurisdiction.of the persons of the parties.

Citizenship, relating as it does exclusively to jurisdiction of the subject-matter, has nothing to do with jurisdiction of the parties as such. Although “agreement of parties cannot enlarge the Constitution and laws of the United States,” and thereby confer upon the federal court authority to determine a subject-matter not included in the grant of power, yet, if the subject-matter is within the grant Lo the federal court, jurisdiction of the parties may be acquired by consent or acquiescence.

Thai is, jurisdiction of subject-matter relates exclusively to the right of the court to hear and decide; jurisdiction of parties concerns merely their personal privileges. So when .plaintiff presented her new, distinct, separate controversy with defendant alone, defendant might have insisted that the case be given a new-docket number, that the declaration be filed in the clerk’s office, that summons be issued and served, that time be granted for settling the issues, and that the controversy be not submitted for trial until defendant had been given all of its personal rights.

But defendant waived all such preliminaries, and, being in the court it selected to hear a controversy it now says was inseparable, asked the court to proceed with the hearing and determination of a controversy that the-record affirmatively and conclusively shows to have been within the lawful power of the court to hear and determine. Plaintiff also asked the court to proceed ; and thereby, in our opinion, the court acquired jurisdiction over the persons of the parties to the entertainable case that has been brought here for review. Though the Supreme Court, in C., B. & Q. Ry. Co. v. Willard, 220 U.

S. 413, 418, 31 Sup. Ct. 460, 55 L. Ed. 521, asked (but found it unnecessary to answer, because that case remained throughout “a joint-action against two companies”) the question now before us, we think support to our answer is lent by Baggs v. Martin, 179 U. S. 206, 21 Sup. Ct. 109, 45 L. Ed. 155, and In re Moore, 209 U. S. 490, 28 Sup. Ct. 585, 52 L. Ed. 904, 14 Ann. Cas. 1164. Baggs was receiver of a Colorado railroad by appointment of the United States Circuit Court for Colorado. Pie was sued in a Colorado' court for his negligence as receiver in injuring Martin.

From the state court he procured an order of removal on the ground that the case arose under the laws of the United States. Both plaintiff and defendant asked the federal court, to try the case on the merits. Baggs attacked the judgment on the ground that the federal court was without jurisdiction.

The substance of the decision, as we read it, is this: If it be conceded that the state court had jurisdiction, and that the case was improperly removed, nevertheless. inasmuch as the subject-matter was within the lawful authority of the federal court to hear atid decide, jurisdiction of the parties, and so full jurisdiction, could be and was acquired by consent of the parties. In the Moore Case, plaintiff, a citizen of Illinois, sued defendant, a citizen of Kentucky, in a "Missouri court. Defendant removed the case to the Federal court for Missouri.

Not only was the removal improper, but an original suit could not have been maintained in the .federal court over defendant’s objection. “So long as diverse citizenship exists, the Circuit Courts of the United States have a general jurisdiction.

That [general] jurisdiction may be invoked in an action originally brought in a Circuit Court or one subsequently removed from a state court, and if any objection arises to the particular court which does not run to the Circuit Courts as a class, that objection may be waived by the party entitled to make it.” Though the objection under consideration was that the defendant had been sued in the wrong district, the language of the court is broad enough to apply to all matters that pertain to the personal privileges of the parties and not to the organic powers of the federal courts.

Pertinent also are the cases where original complaints, filed in the federal courts, disclosed a want of jurisdiction of the subject-matter by reason of improper citizenship, and where, on new and entertain-able complaints, jurisdiction was acquired by consent or acquiescence of the parties. Mason v. Dullagham, 82 Fed. 689, 27 C. C. A. 296; Hopkins v. Oxley Stave Co., 83 Fed. 912, 28 C. C. A. 99; Grove v. Grove (C. C.) 93 Fed. 865; Delaware v. Frank (C. C.) 110 Fed. 689; Conolly v. Taylor, 2 Pet. 556, 7 L. Ed. 518.

Within its limitations respecting subject-matter, a federal court is a court of general jurisdiction. If organic power to hear the controversy exists, it is immaterial when or how the parties get into court; it is enough if they do come in and waive all preliminaries to the submission of their controversy.

And so we deem in point those authorities from state courts which hold that, although the trial court acquired no jurisdiction by the removal of the case on appeal from 'an inferior court, yet, the trial court having jurisdiction of the subject-matter, the judgment would be sustained because the parties had voluntarily joined in submitting their controversies for decision. Randolph County v. Ralls, 18 Ill. 29; Grier v. Cable, 159 Ill. 29, 42 N. E. 395; In re Crawford, 68 Ohio St. 58, 67 N. E. 156, 96 Am. St. Rep. 648; School District v. Gautier, 13 Okl. 194, 73 Pac. 954.

Any other conclusion, we think, would convict our legal procedure of a futile absurdity. If this present distinct and separate controversy between plaintiff and‘defendant alone should be sent back to the state court, either defendant or plaintiff could at once bring it before the very federal court that has already, at the joint instance of the parties, rendered a just decision on the merits. The judgment is affirmed.