The opinion of the court was delivered by: KRAFT
Heintz & Co., Inc. (Heintz), a California corporation, having its principal office in that state, brought this action in the Court of Common Pleas No. 3 of Philadelphia County against Provident Tradesmens Bank and Trust Company (Provident), a Pennsylvania corporation, with its principal office in Philadelphia. Claiming a right to remove under 28 U.S.C. § 1441 because of the existence of diversity of citizenship and of a controversy involving more than $ 10,000, Provident removed the action to this Court. Except to note that no trial on the merits has yet been had, it is unnecessary for present purposes, in our view of the immediate question, to detail further proceedings had in this Court.
Before us now is Heintz's motion to remand the action to the Common Pleas Court on the grounds that the removal was not authorized by statute and that this Court lacks jurisdiction.
28 U.S.C. § 1441(b) provides:
'Any civil action of which the district courts have original jurisdiction founded on a claim or right arising under the Constitution, treaties or laws of the United States shall be removable without regard to the citizenship or residence of the parties. Any other such action shall be removable only if none of the parties in interest properly joined and served as defendants is a citizen of the State in which such action is brought.'
Concededly, the action is not founded on any claim or right alleged to have arisen under the Constitution, treaties or laws of the United States and, so, was not removable, because the limitation in the second sentence of § 1441(b), supra, precluded removal by the defendant, Provident, a citizen of the State in which the action was brought.
The question posed is thus stated by Provident: 'The very narrow question presented for determination is simply whether the Removal Statute (28 U.S.C.A. § 1441) is jurisdictional or whether it is analogous to the Venue Statute (28 U.S.C.A. § 1391 et seq.).'
At first blush it would seem that the question was long ago resolved by Martin v. Snyder, 148 U.S. 663, 13 S. Ct. 706, 37 L. Ed. 602 (1893), in which, under factual circumstances distinguishable from ours only in that no motion for remand had been made before final judgment in the Court below, the Supreme Court said:
'* * * The defendants here were not entitled to such removal, and the decree, which was in favor of complainants, and from which the defendants prosecuted this appeal, must be reversed for want of jurisdiction, with costs against the appellants, and the case remanded to the circuit court, with directions * * * to remand the case to the state court. Torrence v. Shedd, 144 U.S. 527, 533 (12 S. Ct. 726, 36 L. Ed. 528).' (emphasis supplied).
While the amount in controversy in Martin v. Snyder is not disclosed in the report, it is clear that the decision was bottomed not on the trial court's lack of jurisdiction over the subject-matter, but on a want of jurisdiction springing from an unauthorized removal from the state court. Whether or not 'jurisdiction' has the same meaning in each of these contexts would be unimportant for our purposes had not the Supreme Court, in at least three later cases, indicated a view at seeming variance with Martin v. Snyder, supra.
Confronted, in Baggs v. Martin, 179 U.S. 206, 21 S. Ct. 109, 45 L. Ed. 155, (1900), with a situation in which a receiver, after an adverse judgment on the merits, sought reversal on the ground that jurisdiction was lacking in the federal court to which the receiver had improperly removed a state court action against him (on the claim that it was ancillary to the action in which he was appointed receiver), the Supreme Court held that the receiver could not be heard to object to the power of the federal court, to which he had improperly removed the action, to render judgment therein. That the Court would not have so held if the trial court had lacked jurisdiction over the subject-matter, which can be acquired neither by consent nor estoppel, is evident from its own construction of Baggs in Gableman v. Peoria, etc., Ry. Co., 179 U.S. 335, at p. 342, 21 S. Ct. 171, at p. 174, 45 L. Ed. 220:
'We have just held in Baggs (Receiver) v. Martin, 179 U.S. 206 (21 Sup.Ct.Rep. 109, 45 L. Ed. 155), that where a receiver sued in the state court had removed the action to the circuit court which had appointed him, and that the plaintiff had not moved to remand but had accepted the jurisdiction thus invoked, a judgment in that court in plaintiff's favor might be sustained, because the court would have had original jurisdiction, and it did not lie in the mouth of the receiver, under such circumstances, to deny the jurisdiction he had sought.' (emphasis supplied).
It is noted, too, that in American Fire & Casualty Co. v. Finn, 341 U.S. 6, 16, 71 S. Ct. 534, 541, 95 L. Ed. 70 2 (1951), citing Baggs v. Martin, as well as cases from the Courts of Appeals, the Supreme Court observed:
'There are cases which uphold judgments in the district courts even though there was no right to ...