This was an action of trover commenced by plaintiff in error in the court of common pleas for the county of Lehigh, Pennsylvania, October 18, 1900, the declaration averring in substance that on January 13, 1900, certain lumber and building materials were the property of the firm of Bennett & Rothrock, and that, by virtue of an adjudication in bankruptcy of that date, plaintiff succeeded to the title of that firm to said lumber and materials, and that on January 15, 1900, defendant in error wrongfully converted the lumber and materials to its own use.
November 19, 1900, defendant in error presented its bond and petition for the removal of the cause to the circuit court of the United States for the eastern district of Pennsylvania, the petition alleging that the controversy in the suit was wholly between citizens of different states; that the plaintiff, trustee in bankruptcy of Bennett & Rothrock, and Bennett & Rothrock themselves, were at the time of the commencement of the suit, and at the time the petition for removal was presented, citizens of the state of Pennsylvania; and that the defendant was at the time of the commencement [191 U.S. 526, 527] of the suit, and at the time the petition for removal was presented, a citizen of New York; and thereupon the cause was removed. The cause having been docketed and the record filed, defendant filed a plea of not guilty, and a trial was had November 11, 1901, resulting in a verdict for plaintiff for $12,183. January 15, 1902, a motion by defendant for judgment non obstante veredicto was overruled and judgment entered in favor of plaintiff (112 Fed. 638), to review which defendant prosecuted a writ of error from the United States circuit court of appeals for the third circuit, and that court on May 7, 1902, reversed the judgment of the circuit court, and remanded the cause with instructions to enter judgment for defendant on the verdict. 53 C. C. A. 321, 115 Fed. 689. This writ of error was then allowed.
Messrs. Thomas M. B. Hicks, William H. Spencer, and Clarence L. Peaslee for plaintiff in error.
Messrs. Richard C. Dale, William Y. C. Anderson, and William Jay Turner for defendant in error.
Statement by Mr. Chief Justice Fuller:
Mr. Chief Justice Fuller delivered the opinion of the court:
In our opinion the jurisdiction of the circuit court depended entirely on diverse citizenship, the judgment of the circuit court of appeals was final, and the writ of error must be dismissed. Colorado Central Consol. Min. Co. v. Turck, 150 U.S. 138 , 37 L. ed. 1030, 14 Sup. Ct. Rep. 35; Borgmeyer v. Idler, 159 U.S. 408 , 40 L. ed. 199, 16 Sup. Ct. Rep. 34; Press Pub. Co. v. Monroe, 164 U.S. 105 , 41 L. ed. 367, 17 Sup. Ct. Rep. 40.
The views expressed in the latter case will suffice to indicate the governing rules. In that case the complaint in the circuit [191 U.S. 526, 528] court showed that the parties were citizens of different states, and did not claim under the Constitution or laws of the United States. At the trial plaintiff relied wholly upon a common-law right, but defendant invoked the Constitution and laws of the United States. Judgment having passed for plaintiff, which was affirmed by the circuit court of appeals, we dismissed a writ of error to that court on the ground that its judgment was made final by the statute. Mr. Justice Gray, delivering the opinion, said:
In the present case it is contended that the jurisdiction was not dependent entirely on the opposite parties to the suit being citizens of different states, because the suit arose under the laws of the United States, and that, therefore, jurisdiction rested also on that ground. But a suit does not so arise unless it really and substantially involves a dispute or controversy as to the effect or construction of the Constitution, or validity or construction of the laws or treaties of the United States, upon the determination of which the result depends, and which appears in the record by plaintiff's pleading. Arbuckle v. Blackburn, 191 U.S. 406 , ante, 148, 24 Sup. Ct. Rep. 148; Western U. Teleg. Co. v. Ann Arbor R. Co. 178 U.S. 239 , 44 L. ed. 1052, 20 Sup. Ct. Rep. 867; Muse v. Arlington Hotel co. 168 U.S. 430 , 42 L. ed. 531, 18 Sup. Ct. Rep. 109. [191 U.S. 526, 531] Plaintiff's declaration set forth no matter raising any controversy under the Constitution, laws, or treaties of the United States. It is true that if the lumber and materials belonged to Bennett & Rothrock on January 13, 1900, plaintiff in error succeeded to the title of the firm on the adjudication; but the question of Bennett & Rothrock's ownership on that day in itself involved no Federal controversy, and the mere fact that plaintiff was trustee in bankruptcy did not give jurisdiction. Bardes v. First Nat. Bank, 178 U.S. 524 , 44 L. ed. 1175, 20 Sup. Ct. Rep. 1000. Indeed, if the case had not been removed, and had gone to judgment in the court of common pleas, and that judgment had been affirmed by the supreme court of Pennsylvania on the same grounds as those on which the circuit court of appeals proceeded, a writ of error could not have been brought under 709 of the Revised Statutes (U. S. Comp. Stat. 1901, p. 575), for the case would not have fallen within either of the classes enumerated in that section as the basis of our jurisdiction. The validity of the bankruptcy act was conceded, and no right specially set up or claimed under it was denied.
Section 23 of the bankruptcy law does not enable us to maintain jurisdiction. The first two clauses read (before the amendment of February 5, 1903 (32 Stat. at L. 797, chap. 487) as follows:
Plaintiff brought his action in the state court, and its re- [191 U.S. 526, 532] moval on the ground of diverse citizenship placed it in the circuit court as if it had been commenced there on that ground of jurisdiction, and not as if it had been commenced there by consent of defendant under 23 of the bankruptcy act. The right to removal is absolute, and cannot be trammeled by such a consequence.
Nor can this writ of error be sustained under 25 of the bankruptcy law, for the section has no application. The reasons for that conclusion will be found in Holden v. Stratton, 191 U.S. 115 , ante, p. 45, 24 Sup. Ct. Rep. 45.
As to the suggestion that certiorari might now be issued, the judgment of the circuit court of appeals was rendered May 7, 1902, and there is nothing to take the case out of the general rule. The Conqueror, 166 U.S. 110, 114 , 41 S. L. ed. 937, 939, 17 Sup. Ct. Rep. 510; Ayres v. Polsdorfer, 187 U.S. 585, 595 , 47 S. L. ed. 314, 317, 23 Sup. Ct. Rep. 196.
Writ of error dismissed.