U.S. Supreme Court MITCHELL v. MAURER, 293 U.S. 237 (1934)

[Page 293 U.S. 237, 242]

ancillary receivers must be set aside because the District Court lacked federal jurisdiction of the cause.

First. If the jurisdiction of the District Court must rest on diversity of citizenship, it fails because one of the plaintiffs is a citizen of the same state as the defendant. Hooe v. Jamieson, 166 U.S. 395, 17 S.Ct. 596. The proceeding in the District Court was entitled 'Bertha E. Maurer v. International Re-insurance Corporation'; and that title has been used in all later proceedings in that court, in the Court of Appeals and in this Court. If Bertha E. Maurer had actually been the plaintiff, there would have been diversity of citizenship; for she is a citizen of New Jersey. But, in fact, Bertha E. Maurer was not a party to the application for the appointment of the ancillary receivers; was not later made a party to the suit; and has not appeared at any stage of the proceedings. Her name was used, doubtless, because she was the plaintiff in the suit against the Corporation brought in the Court of Chancery of Delaware in which the primary receivers were appointed. [Footnote 2] The application in the case at bar for the appointment of ancillary receivers was made by, and in the name of, the primary receivers. They sue as quasi-assignees claiming to be entitled to the possession of the balance of the California property after its administration by the District Court of California. In the original application filed April 19, 1933 they called themselves petitioners. In the amendments filed six days later, the application is called a 'bill of complaint.' It is so designated in the answer of the Corporation, filed at the same time. We necessarily treat the primary receivers as the plaintiffs.

[Page 293 U.S. 237, 243]

Second. Apparently this lack of diversity jurisdiction was regarded as immaterial by the Court of Appeals, on the ground that the suit was an ancillary one. For the opinion states: 'Finally it has been held that an ancillary suit in a federal court does not depend on diverse citizenship.' This position is adopted in the brief of the primary receivers, but the contention is unsound. Where the jurisdiction of a Federal District Court is based upon diversity of citizenship, proceedings therein in intervention being ancillary, the jurisdiction rests upon that of the main cause. Cincinnati, etc., R. Co. v. Indianapolis, etc., Ry. Co., 270 U.S. 107, 46 S.Ct. 221. The same rule is applicable to sustain jurisdiction of independent suits which are ancillary to an original suit in the same court. White v. Ewing, 159 U.S. 36, 15 S.Ct. 1018. Whether the rule may ever be applied to a suit brought in a federal court of another district; and whether a suit for the appointment of ancillary receivers in another federal district is an ancillary suit within the meaning of the rule does not appear to have been decided by this Court. [Footnote 3] We need not decide either question now. For the rule can have no application where primary receivers appointed by a state court bring a suit for the appointment of ancillary receivers in the federal court for another State. Obviously such an application is not ancillary to any proceedings in any federal court. It is an independent original bill. Being such, it cannot be sustained when diversity of citizenship

[Page 293 U.S. 237, 244]

does not exist and no other ground of federal jurisdiction is shown.

Third. Unlike an objection to venue, lack of federal jurisdiction cannot be waived or be overcome by an agreement of the parties. An appellate federal court must satisfy itself not only of its own jurisdiction, but also of that of the lower courts in a cause under review. 4 Mansfield, etc., R. Co. v. Swan, 111 U.S. 379, 382, 4 S.Ct. 510. Hence, the failure of the Insurance Commissioner to claim, in his petition for certiorari, that the order of the District Court was void for lack of federal jurisdiction of the suit, and his failure otherwise to call to the attention of this Court the lack of diversity of citizenship are immaterial. The Court of Appeals pointed out that under Judicial Code , 274c (28 USCA 399), where 'jurisdiction of the district court is based upon the diverse citizenship of the parties, and such diverse citizenship in fact existed at the time the suit was brought, ... though defectively alleged, either party may amend at any stage of the proceedings and in the appellate court upon such terms as the court may impose.' But, in the case at bar, the admitted facts preclude such an amendment. Diversity of citizenship confessedly did not exist.

The judgment is reversed; and the cause is remanded to the District Court with directions to dismiss the bill for want of federal jurisdiction.

Reversed. Footnotes

Footnote 1 For disposition of the case by this Court, see , 55 S.Ct. 42.

Footnote 2 Similarly, in McCandless v. Furlaud, 293 U.S. 67, 55 S.Ct. 42. the petition for the appointment of ancillary receivers filed by the primary receivers in the federal court for southern New York, bore the title of the suit in the federal court for western Pennsylvania which appointed them.

Footnote 3 In Raphael v. Trask, 194 U.S. 272, 278, 24 S.Ct. 647, it is intimated that the jurisdiction of a federal court cannot be based upon an original suit in another federal court. Some of the lower courts have so held. Winter v. Swinburne (C.C.) 8 F. 49, where the subject was fully discussed. Compare United States v. Pedarre (D.C.) 262 F. 839; Sullivan v. Swain (C.C.) 96 F. 259. But see Bluefields S.S. Co. v. Steele ( C.C.A.) 184 F. 584, 587. Compare Trustees System Co. of Pennsylvania v. Payne (C.C.A.) 65 F. (2d) 103, and Walker v. United States Light & Heating Co. (D.C.) 220 F. 393, which concern requisites of equity, rather than federal, jurisdiction.

Footnote 4 The order appointing ancillary receivers attacked in McCandless v. Furlaud, , 55 S.Ct. 42, on the ground that the court was without federal jurisdiction, had been entered, not in the suit there under review, but in a separate proceeding in the same court.