Kansas City Northwestern R. Co. v. Zimmerman, 210 U.S. 336 (1908)
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Scribd Government DocsKansas City Northwestern R. Co. v. Zimmerman, 210 U.S. 336 (1908)
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Scribd Government Docs210 U.S.
336
28 S.Ct. 730
52 L.Ed. 1084
KANSAS CITY NORTHWESTERN RAILROAD COMPANY,
Appt.,
v.
FREDERICK ZIMMERMAN, as Administrator of L.
Zimmerman, Deceased.
No. 231.
Submitted April 28, 1908.
Decided June 1, 1908.
Mr. Balie P. Waggener for appellant.
Messrs. John H. Atwood and W. W. Hooper for appellee.
Mr. Justice Holmes delivered the opinion of the court:
This is a bill in equity to enjoin the appellant, hereafter called the defendant,
from operating its railroad over certain land in Leavenworth, formerly
belonging to the plaintiff's intestate, until a judgment against the defendant's
predecessor in title for the damages caused by the appropriation of the land
should be paid. It appears from the bill, among other things, that the
defendant's predecessor appropriated the land without regular proceedings, and
in 1889 the plaintiff's intestate began an action on which he recovered a
judgment on May 15, 1897; that the defendant's predecessor had mortgaged its
road in 1888; that on March, 1890, a suit to foreclose the mortgage was begun,
and in 1893 there was a decree of foreclosure; and that this decree was followed
(in 1894) by a sale to the defendant. It is alleged that the defendant became the
successor in interest to all the rights, 'and, as part of the consideration, assumed
and was subject to all the liabilities,' of its predecessor, 'under and by virtue of
said decree and purchase;' and again, 'that, under and by virtue of said decree
and the ordinances of said city, said defendant assumed and agreed to pay off
any and all obligations' of the earlier road.
The present suit was begun in a state court in May, 1899. In June the defendant
The present suit was begun in a state court in May, 1899. In June the defendant
removed it to the circuit court of the United States, on the ground that the
determination of the cause involved the construction of the foreclosure decree
and of the Constitution and of the laws of the United States. The bill was
reformed, and the defendant demurred to the merits, and also on the ground that
the state court had no jurisdiction, and that therefore the United States court
had none. The demurrer was sustained by the circuit court on the ground of
want of jurisdiction in the state court; but, on appeal by the plaintiff, the decree
was reversed by the circuit court of appeals and a decision rendered for the
plaintiff on the merits. 75 C. C. A. 424, 144 Fed. 622. Thereupon, on
November 27, 1906, a decree was entered for the plaintiff. On January 17,
1907, an appeal to this court was taken by the defendant and allowed; and on
October 23 of the same year a certificate was made that the question involving
the jurisdiction of the circuit court was in issue and decided against the
defendant, and thus the case now stands.
We do not deem it necessary to discuss all the difficulties that the appellant
would have to overcome in order to maintain its case. It seems from the opinion
of the circuit court of appeals not to have insisted on the objection to the
jurisdiction there, but to have taken its chances on the merits (75 C. C. A. 424,
144 Fed. 624), as also by its demurrer it relied mainly on the want of equity in
the bill. See St. Louis & S. F. R. Co. v. McBride, 141 U. S. 127, 35 L. ed. 659,
11 Sup. Ct. Rep. 982. It comes here on the purely technical proposition that,
although the plaintiff is in the right court, and although the case has been heard
on the merits at the defendant's invitation, the plaintiff must begin over again
because he did not come into court by the right way.
If the defendant had confined its defense to a denial of jurisdiction, there would
be force in the consideration that the plaintiff, not it, took the case to the circuit
court of appeals. But, in the circumstances of this case, the defendant seems to
us to stand no better than it would if it had taken the appeal to the circuit court
of appeals. Carter v. Roberts, 177 U. S. 496, 500, 44 L. ed. 861, 863, 20 Sup.
Ct. Rep. 713; Robinson v. Caldwell, 165 U. S. 359, 41 L. ed. 745, 17 Sup. Ct.
Rep. 343. It is suggested that the circuit court of appeals had no jurisdiction,
citing American Sugar Ref. Co. v. New Orleans, 181 U. S. 277, 45 L. ed. 859,
21 Sup. Ct. Rep. 646. But, although the defendant, in its petition for removal,
set up that the construction of the Constitution of the United States was
involved, such was not the fact, and the language of the case cited does not
apply.
It is enough, however, that the ground on which the jurisdiction of the circuit
court was denied did not go to its jurisdiction as a Federal court. Louisville
Trust Co. v. Knott, 191 U. S. 225, 48 L. ed. 159, 24 Sup. Ct. Rep. 119. The
certificate does not purport to enlarge the record, but simply to state what was
in issue. The record shows that the jurisdiction of the circuit court was denied
on the single ground that the state court where the proceedings started had
none. Whether that contention was correct or not under Wabash R. Co. v.
Adelbert College, 208 U. S. 38, ante, 182, 28 Sup. Ct. Rep. 182, it had nothing
to do with the jurisdiction of the Federal court as such, or, indeed, at all, except
for the reason that the power of a secondary tribunal can go no higher than its
source. We may add that the jurisdiction of the circuit court, if it existed, was
ancillary to its possession of the res, if it had it, that the principles to be applied
are of general application (208 U. S. 54), and again these do not concern the
jurisdiction of the Federal court as such.
6
The defendant now, after having secured a removal, and after having
successfully resisted a motion to remand, attempts to deny the jurisdiction of
the circuit court on the ground that the removal was improper. It is enough to
say that that question is not open under the certificate.
Appeal dismissed.
