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wrong district. Gracie v. Palmer, 8 Wheat. 699; Taylor v. Longworth, 14 Pet. 172, 174; St. Louis & San Francisco Railway v. McBride, 141 U. S. 127; Texas & Pacific Railway v. Cox, 145 U. S. 593; Central Trust Company v. McGeorge, 151 U. S. 129.”
In Mexican National Railroad Company v. Davidson, 157 U. S. 201, 208, Mr. Chief Justice Fuller, after stating that the action could not have been originally brought in the Circuit Court of the United States because both parties were, in the eyes of the law, citizens of the same State, added:
“It is true that by the first section, where the jurisdiction is founded on diversity of citizenship, suit is to be brought ‘only in the district of residence of the plaintiff or the defendant,' and this restriction is a personal privilege of the defendant and may be waived by him. St. Louis & San Francisco Ry. v. McBride, 141 U. S. 127. Section 2, however, refers to the first part of section 1, by which jurisdiction is conferred, and not to the clause relating to the district in which suit may be brought. McCormick Machine Co. v. Walthers, 134 U. S. 41."
In Interior Construction & Improvement Company v. Gibney, 160 U. S. 217, 219, Mr. Justice Gray thus stated the law:
“Diversity of citizenship is a condition of jurisdiction, and, when that does not appear upon the record, the court, of its own motion, will order the action to be dismissed. But the provision as to the particular district in which the action shall be brought does not touch the general jurisdiction of the court over such a cause between such parties; but affects only the proceedings taken to bring the defendant within such jurisdiction, and is a matter of personal privilege, which the defendant may insist upon, or may waive, at his election; and the defendant's right to object that an action, within the general jurisdiction of the court, is brought in the wrong district, is waived by entering a general appearance, without taking the objection.”
In Ex parte Wisner, supra, Mr. Chief Justice Fuller, referring
to St. Louis &c. Railway Company v. McBride, 141 U. S. 127,
“As the defendant appeared and pleaded to the merits, he thereby waived his right to challenge thereafter the jurisdiction of the court over him on the ground that the suit had been brought in the wrong district. And there are many other cases to the same effect."
Several other cases in this court, as well as many in the Circuit Courts and Circuit Courts of Appeal, might be noticed, in which a similar ruling as to the effect of a waiver was announced. It is true that in most of the cases the waiver was by the defendant, but the reasoning by which a defendant is precluded by a waiver from insisting upon any objection to the particular United States court in which the action was brought compels the same conclusion as to the effect of a waiver by the plaintiff of his right to challenge that jurisdiction in case of a removal. As held in Kinney v. Columbia Saving & Loan Association, 191 U. S. 78, a petition and bond for removal are in the nature of process. They constitute the process by which the case is transferred from the state to the Federal court, and if when the defendant is brought into a Federal court by the service of original process he can waive the objection to the particular court in which the suit is brought, clearly the plaintiff, when brought into the Federal court by the process of removal, may in like manner waive his objection to that court. So long as diverse citizenship exists the Circuit Courts of the United States have a general jurisdiction. That 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. As we have seen in this case, the defendant applied for a removal of the case to the Federal court. Thereby he is foreclosed from objecting to its jurisdiction. In like manner, after the removal had been ordered, the plaintiff elected to remain in
that court, and he is, equally with the defendant, precluded from making objection to its jurisdiction.
Special reliance is placed by petitioner upon this statement in the Wisner case (p. 460):
“But it is contended that Beardsley was entitled to remove the case to the Circuit Court, and as by his petition for removal he waived the objection so far as he was personally concerned that he was not sued in his district, hence that the Circuit Court obtained jurisdiction over the suit. This does not follow, inasmuch as in view of the intention of Congress by the act of 1887 to contract the jurisdiction of the Circuit Courts, and of the limitations imposed thereby, jurisdiction of the suit could not have obtained, even with the consent of both parties."
It is said that here is a distinct declaration that “jurisdiction of the suit could not have obtained, even with the consent of both parties.” There was no pretense of any consent on the part of the plaintiff in that case, and therefore this statement was unnecessary. In order, however, to prevent future misconception we add that nothing in the opinion in the Wisner case is to be regarded as changing the rule as to the effect of a waiver in respect to a particular court.
It may not be amiss to note that in several of the Circuit Courts and Courts of Appeal the Wisner case has been considered, and in all held that no change was intended by it. Corwin M. Company v. Henrici Washer Company, opinion by Lowell, Circuit Judge, 151 Fed. Rep. 938; Louisville & Nashville Railroad Company v. Fisher, 155 Fed. Rep. 68, Circuit Court of Appeals (Sixth Circuit), opinion by Lurton, Circuit Judge; Shanburg v. F. & C. Co., Circuit Court of Appeals (Eighth Circuit), opinion by Riner, District Judge; McPhee & McGinnity Company v. Union Pacific R. R. Co., Circuit Court of Appeals (Eighth Circuit), opinion by Sanborn, Circuit Judge. These two opinions are not yet published.
We might also refer to the several text books in which is affirmed the general doctrine of the effect of the waiver of an
THE CHIEF JUSTICE dissenting.
objection to a particular court in which the suit has been brought or to which it has been removed. We have made these many quotations and references, not simply to establish the doctrine itself, but to emphasize the widespread injurious results which may be expected to follow from now enforcing a different rule; for, if in a case between citizens of different States, of which the Circuit Courts of the United States are given general jurisdiction, an objection to the jurisdiction of a particular one of those courts cannot be waived and no consent can give jurisdiction, it is clear that many judgments have been rendered by those courts in reliance upon such a waiver, which will necessarily be held to be absolutely void, and the litigation must be had over again in some other courts, resulting, possibly, in different decisions tough the disappearance of witnesses, the loss of testimony, or the running of the statute of limitations.
The jurisdiction of the Circuit Court of the United States for the Eastern Division of the Eastern District of Missouri was settled by the proceedings had by the two parties, and the application for a writ of mandamus is
THE CHIEF JUSTICE dissenting.
The right of action was not vested in the next friend and the citizenship of the infant controls. The case is one, there fore, in which the plaintiff was a citizen and resident of the State of Illinois and the defendant a corporation created and existing under the laws of the State of Kentucky, and a citizen and resident of that State. The action was brought in the Circuit Court of the city of St. Louis, Missouri, of which State neither of the parties was a citizen. The fact that the next friend, who also acted as attorney-at-law for the minor, was a citizen of Missouri, is immaterial.
The question is whether, where neither of the parties is a citizen of the State in which the action is brought, the juris
THE CHIEF JUSTICE dissenting.
diction of the Circuit Court can be maintained if both parties consent to it. Jurisdiction of the Circuit Courts depends upon some act of Congress, Stevenson v. Fain, 195 U. S. 165, 167; Turner v. Bank, 4 Dall. 8, 10; McIntire v. Wood, 7 Cranch, 504, 506; and I quote at length from the opinion of Mr. Justice Gray in Shaw v. Quincy Mining Co., 145 U. S. 444, because he therein examines the statutory provisions bearing on the question before us, saying (p. 446):
“In carrying out the provision of the Constitution which declares that the judicial power of the United States shall extend to controversies between citizens of different States,' Congress, by the Judiciary Act of September 24, 1789, c. 20, $ 11, conferred jurisdiction on the Circuit Court of suits of a civil nature, at common law or in equity, 'between a citizen of the State where the suit is brought and a citizen of another State,' and provided that 'no civil suit shall be brought' against an inhabitant of the United States,' 'in any other district than that whereof he is an inhabitant, or in which he shall be found at the time of serving the writ.' 1 Stat. 78, 79.
“The word “inhabitant,' in that act, was apparently used, not in any larger meaning than 'citizen,' but to avoid the incongruity of speaking of a citizen of anything less than a State, when the intention was to cover not only a district which included a whole State, but also two districts in the State, like the districts of Maine and Massachusetts in the State of Massachusetts, and the districts of Virginia and Kentucky in the State of Virginia, established by $ 2 of the same act. 1 Stat. 73. It was held by this court from the beginning that an averment that a party resided within the State or the district in which the suit was brought was not sufficient to support the jurisdiction, because in the common use of words a resident might be a citizen, and therefore it was not stated expressly and beyond ambiguity that he was a citizen of the State, which was the fact on which the jurisdiction depended under the provisions of the Constitution and of the Judiciary Act...
“By the act of May 4, 1858, c. 27, § 1, it was enacted that,