Mr. T. K. Schmuck, of New York City, for petitioner.
Messrs. Edward R. Baird, Jr., and Gilbert R. Swink, both of Norfolk, Va., for respondent.
Mr. Justice CLARKE delivered the opinion of the Court.
The Coalmont Moshannon Coal Company, a Pennsylvania corporation, filed its petition in the circuit court of the city of Norfolk, Va., against the petitioner, Matthew Addy Steamship & Commerce Corporation, a Delaware company, for the recovery of damages for the alleged breach of a contract, and, under Virginia practice, garnisheed other defendants. In due time, and in proper form, the defendant, the petitioner herein, filed its petition for the removal of the case to the District Court of the United States for the Eastern District of Virginia. Thereafter the plaintiff in the state court filed a motion to remand the case claiming that it was not removable for the reason that the plaintiff and the principal defendant [256 U.S. 417, 418] were nonresidents of the Eastern District of Virginia. The District Court sustained this motion and ordered the case remanded to the state court.
The petition in this proceeding prays that a writ of mandamus shall be issued, directing the District Judge for the Eastern District of Virginia, to vacate the order remanding the case, to redocket it in the District Court, and that it thereupon be heard and determined according to law. A rule to show cause was issued and the judge has filed his return, in which he asserts that the petition should be dismissed, for the reason that mandamus is not an appropriate remedy, because not permitted by the provisions of section 28 of the Judicial Code (Comp St. 1010), reading as follows:
This language of the Judicial Code first appeared in the Act of Congress of March 3, 1887 (24 Stat. 552, c. 373), as re-enacted on August 3, 1888 (25 Stat. 433, c. 866), and it has continued unchanged, except by the substitution of the District for the Circuit Court.
In 1890, in the case of In re Pennsylvania Co., Petitioner, 137 U.S. 451 , 11 Sup. Ct. 141, it was held that the power which this court had before the passage of the acts, supra, to afford a remedy by mandamus when a cause, removed from a state court was improperly remanded thereto, was taken away by these acts. Upon full consideration of the prior legislation, this court in the opinion in that case said of the language of the statute quoted ( 137 U.S. 454 , 11 Sup. Ct. 142 [34 L. Ed. 738]):
In Fisk v. Henarie, 142 U.S. 459, 468 , 12 S. Sup. Ct. 207, In re Pennsylvania Company, supra, was cited as authority for the declaration that 'review on writ of error, or appeal or by mandamus is taken away' by the statutes cited.
In Missouri Pacific Railway Company v. Fitzgerald, 160 U.S. 556, 581 , 16 S. Sup. Ct. 389, 395 (40 L. Ed. 536) this court said:
In Powers v. Chesapeake & Ohio R. Co., 169 U.S. 92, 98 , 18 S. Sup. Ct. 264, 266 (42 L. Ed. 673) it was said that an order remanding a case such as we have here 'is not reviewable by this court.' [256 U.S. 417, 420] In McLaughlin Brothers v. Hallowell, 228 U.S. 278 , 33 Sup. Ct. 465, it is held that an order of the United States Circuit Court, remanding a case to a state court, in not reviewable here, directly or indirectly, citing Missouri Pacific Railway Co. v. Fitzgerald, 160 U.S. 556 , 16 Sup. Ct. 389.
It is obvious that this statute, and these decisions interpreting it, rule the case at bar, and require that the petition for mandamus be dismissed.
It is not important to inquire to what extent, if at all, Ex parte Wisner, 203 U.S. 449 , 27 Sup. Ct. 150, and In re Moore, 209 U.S. 490 , 28 Sup. Ct. 585, 706, 14 Ann. Cas. 1164, departed from the statute and decisions cited, for the correct rule with respect to the function and use of the writ of mandamus has been so often announced in other later cases that it has become entirely settled. Ex parte Harding, 219 U.S. 363 , 31 Sup. Ct. 324, 37 L. R. A. ( N. S.) 392; McLaughlin Brothers v. Hallowell, 228 U.S. 278 , 33 Sup. Ct. 465; Ex parte Roe, 234 U.S. 70 , 34 Sup. Ct. 722; Pacific Live Stock Co. v. Lewis, 241 U.S. 440, 447 , 36 S. Sup. Ct. 637; Ex parte Park Square Automobile Station, 224 U.S. 412 , 37 Sup. Ct. 732; Ex parte Park & Tilford, 245 U.S. 82 , 38 Sup. Ct. 15.
The conflict of opinion in the lower courts with respect to the right of removal from a state court of a case in which the opposing parties are citizens of different states and neither is a resident of the state in which the case is commenced, is much to be regretted, but section 28 of the Judicial Code is controlling, and Congress alone has power to afford relief.