203 U.S. Statement of the Case. Ex parte WISNER. PETITIONS FOR WRITS OF MANDAMUS AND OF PROHIBITION. Nos. 9, 10. Original. Submitted May 14, 1906. Decided December 10, 1906. The Supreme Court of the United States alone possesses jurisdiction derived immediately from the Constitution and of which the legislative power cannot deprive it; that of the Circuit Court depends on some act of Congress. No suit which could not have been originally brought in the Circuit Court of the United States can be removed therein from the state court. Under §§ 1, 2, 3, of the act of March 3, 1875, 18 Stat. 470, as amended by the act of March 1, 1887, 24 Stat. 552, corrected by the act of August 13, 1888, 25 Stat. 433, an action commenced in a state court, by a citizen of another State, against a non-resident defendant who is a citizen of a State other than that of the plaintiff cannot be removed by the defendant into the Circuit Court of the United States. Where the Circuit Court refuses to remand to the state court a case removed to it, but over which it has no jurisdiction, mandamus from this court is the proper remedy and not prohibition. ABRAM C. WISNER, a citizen of the State of Michigan, commenced an action at law, on February 17, A. D. 1906, in the Circuit Court in and for the city of St. Louis and State of Missouri, against John D. Beardsley, a citizen of the State of Louisiana, by filing a petition, together with an affidavit, on which that court issued a writ of attachment, in the usual form, directed to the sheriff of St. Louis. The sheriff returned no property found, but that he had garnisheed the Mississippi Valley Trust Company, a corporation of Missouri, and also had served Beardsley with summons in the city of St. Louis. Saturday, March 17, A. D. 1906, the garnishee answered, and on the same day Beardsley filed his petition to remove the action from the state court into the Circuit Court of the United States for the Eastern Division of the Eastern District of Missouri, on the ground of diversity of citizenship, together VOL. CCIII-29 Argument for Petitioner. 203 U.S. with the bond required in such case. An order of removal was thereupon entered by the state court and the transcript of record was filed in the Circuit Court of the United States. Monday, March 19, Wisner moved to remand in these words: "Now at this day comes plaintiff, by his attorneys, Jones, Jones & Hocker, and appearing specially for the purposes of this motion only, saving and reserving any and all objections. which he has to the manifold imperfections in the mode, manner and method of the removal papers and expressly denying that this court has jurisdiction of this cause, or of the plaintiff therein, respectfully moves the court to remand this cause to the Circuit Court of the city of St. Louis, from whence it was removed, for the reason that this suit does not involve a controversy or dispute properly within the jurisdiction of this court, and that it appears upon the face of the record herein that the plaintiff is a citizen and resident of the State of Michigan and the defendant a citizen and resident of the State of Louisiana, and the cause is not one within the original jurisdiction of this court, hence this court cannot acquire jurisdiction by removal." The motion was heard and denied April 2, 1906, the Circuit Court referring to Foulk v. Gray, 120 Fed. Rep. 156, and Rome Petroleum Company v. Hughes, 130 Fed. Rep. 585, as representing the different views of the courts below on the question involved. On April 23, Wisner applied to this court for leave to file a petition for mandamus as well as a petition for prohibition, leave was granted, and rules entered returnable May 14, 1906, and the cases submitted on the returns to the rules. Mr. H. S. Mecartney, Mr. James C. Jones, Mr. J. J. Darlington and Mr. C. G. B. Drummond for petitioner: The Circuit Court to which the case was removed had no jurisdiction under the act of 1887-1888, as it does not appear that either of the parties to the suit is a citizen of the State and an inhabitant and resident of the district in which the 203 U.S. Argument for Petitioner. Circuit Court in which it is brought is held. Neither of the parties to the suit involved in this application resided in the Eastern Judicial District of Missouri, so that it could not have been maintained in that court if it had been brought there originally by original process. 25 Stat. 433; Shaw v. Quincy Mining Co., 145 U. S. 444; McCormick v. Walthers, 134 U. S. 43; Smith v. Lyon, 133 U. S. 319; St. Louis Ry. v. McBride, 141 U. S. 128. In order to make a suit removable under § 2 of the act of 1887-1888 it must be one which the plaintiff could have brought originally in the United States Circuit Court, to which it would be removed by original process. Traction Co. v. Mining Co., 196 U. S. 245; Mexican Nat. R. R. v. Davidson, 157 U. S. 208; Tennessee v. U. & P. Bank, 152 U. S. 454; Metcalf v. Watertown, 128 U. S. 586; Minnesota v. Northern Securities Co., 194 U. S. 48, 63; Boston Mining Co. v. Montana Ore Co., 188 U. S. 640; Cates v. Allen, 149 U. S. 459; Sweeney v. Carter Oil Co., 199 U. S. 252; So. Pac. Co. v. Denton, 146 U. S. 202; Anderson v. Watt, 138 U. S. 701; Neel v. Penn. Co., 157 U. S. 153; Hanrick v. Hanrick, 153 U. S. 198; Powers v. C. & O. Ry., 169 U. S. 99; M. C. & L. M. Ry. v. Swan, 111 U. S. 379. The act of 1887 restored the rule of 1789, and as has been heretofore decided, those suits only can be removed of which the Circuit Courts are given original jurisdiction. Cochran v. Montgomery County, 199 U. S. 260, which repudiates Rome v. Hughes, 130 Fed. Rep. 585. Plaintiff, not having submitted himself to the jurisdiction of the Circuit Court to which the case has been removed, either by bringing his suit therein or by afterwards, by any act of his, waiving the want of jurisdiction of the court in any way, is at full liberty to object to the total want of jurisdiction of the United States Circuit Court of the cause after its removal and to insist on the same. The proceeding of removal is an original but indirect proceeding by which the United States Circuit Courts acquire Argument for Petitioner. 203 U.S. original jurisdiction of a cause. As to what "original" means see Com. v. Schollinberger, 156 Pa. St. 213; Haley v. State, 42 Nebraska, 561; Anderson's Law Dict. 739; Black's Law Dict. 857; Rich v. Husson, 1 Duer, 620. The removal is only an indirect mode by which the Federal court acquires original jurisdiction. Virginia v. Rives, 100 U. S. 337; Railway Co. v. Whitton, 13 Wall. 287. Clause 2 of 2 gives the right only to remove into a court of the proper district and the only districts in which a defendant can be sued under the act of 1888, is that of the residence of the plaintiff, and that of the residence of the defendant. Smith v. Lyon, 133 U. S. 319; McCormick v. Walthers, 134 U. S. 44; Mex. Nat. Bank v. Davidson, 157 U. S. 208; Shaw v. Quincy Mining Co., 145 U. S. 448, and such district is, therefore, the only proper district, within the meaning of the first section of the act. Plaintiff did not sue originally in the Federal court, and thus call on defendant either to object to the jurisdiction or to waive the privilege he has of not being sued in that court and submitting to its jurisdiction. For this reason it does not fall within the principle of the cases which apply when the question of waiver is raised by suit being brought originally in the Federal court. Central Trust Co. v. McGeorge, 151 U. S. 134; Shaw v. Mining Co., 145 U. S. 453. Although the suit was not removable under § 2, and, therefore, the Circuit Court acquired no jurisdiction of it through the removal, yet, as this want of jurisdiction arose, not from something absolutely essential to vest jurisdiction, but from something in the nature of a personal privilege of the party against whom jurisdiction is being asserted, it can be waived, and if waived, the jurisdiction of the court would become complete and attach independent of the removal, but solely because the waiver brought the cause within the jurisdiction of the court. Such waiver may be effected by either a general appearance, or any imparlance, answer, plea, or other act whatso 203 U.S. Argument for Petitioner. ever, which recognizes that jurisdiction of the cause exists in the court. Central Trust Co. v. McGeorge, 151 U. S. 134; St. Louis Ry. v. McBride, 141 U. S. 131; Wabash Ry. v. Brow, 164 U. S. 280; In re Cooper, 143 U. S. 473; Interior Const. Co. v. Gibney, 160 U. S. 219; Texas & P. Ry. v. Saunders, 151 U. S. 109; Martin v. B. & O. R. R., 151 U. S. 688; French v. Hay, 22 Wall. 238; Pollard v. Dwight, 4 Cranch, 421; So. Pac. Co. v. Denton, 146 U. S. 205; 8 Bacon's Abrdgmt. (Prohibition K), citing 2 Mod, 271, 272; Welthosen v. Ormsley, 3 Durnf. & East, 316. The Circuit Court to which the case was removed being entirely without jurisdiction, prohibition is proper. 2 Coke's Inst., tit. Articuli Cleri, 602; Carter v. Southall, 3 M. & W. 126; Re Alix, 166 U. S. 137; Re Rice, 155 U. S. 396, 402; Smith v. Whitney, 116 U. S. 167, 173; Ex parte Easton, 95 U. S. 77; In re Morrison, 147 U. S. 36; In re Fassett, 142 U. S. 486; In re Cooper, 143 U. S. 495; United States v. Hoffman, 4 Wall.. 161; In re Huguley Mfg. Co., 184 U. S. 301; Ex parte Pennsylvania, 109 U. S. 175, 176; Bronson v. Lacrosse Ry. Co., 1 Wall. 408; Fitzherbert's Natura Breviun (46a), side p. 108; Jones v. Owens, 18 Law J. 2 Q. B. 8; Ex parte Phonix Ins. Co., 118 U. S. 610. Petitioner has no other remedy and cannot preserve his rights as by an appearance he would waive them and therefore he is entitled to prohibition as of right. The action of the Circuit Court complained of is in direct violation of its duty as prescribed by the act in such a case, is in violation of the statute and of the authority of the United States by which it was created and from which it receives its authority. Minnesota v. Northern Securities Co., 194 U. S. 65; Neel v. Penn Co., 157 U. S. 153; Tennessee v. U. & P. Bank, 152 U. S. 461; Colorado Co. v. Turk, 150 U. S. 138, 143; Hanrick v. Hanrick, 153 U. S. 192, 198. But even if petitioner had a remedy by appeal or error, yet it must be an adequate remedy to bar it from a right to the writ of prohibition under the facts shown by the petition for |