In Re Winn, 213 U.S. 458 (1909)
In re Winn
No. 12, Original
Argued April 5, 1909
Decided May 3, 1909
213 U.S. 458
APPLICATION FOR A WRIT OF MANDAMUS AGAINST THE HONORABLE
SMITH McPHERSON, DISTRICT JUDGE OF THE UNITED STATES FOR THE
SOUTHERN DISTRICT OF IOWA, CENTRAL DIVISION, AND AGAINST THE
CIRCUIT COURT OF THE UNITED STATES FOR THE SOUTHERN DISTRICT
OF IOWA, CENTRAL DIVISION
Syllabus
No cause can be removed from the state court to the circuit court of the United States unless it could have originally been brought in the latter court. Boston Mining Co. v. Montana Ore Co., 188 U.S. 632, and Ex Parte Wisner, 203 U.S. 449.
A suit only arises under the Constitution and laws of the United States within the meaning of § 1 of the Act of August 13, 1888, c. 866, 25 Stat. 433, conferring jurisdiction on the Circuit Court when the plaintiff’s statement of his own cause of action shows that it is based on those laws or that Constitution, and it is not enough that defendant may base his defense thereon. Louisville & Nashville Railroad v. Mottley, 211 U.S. 149.
Although a defendant in the state court may set up a defense based on federal rights which will, if denied, entitle him ultimately to have the decision reviewed by this Court, if the federal question does not appear in the plaintiff’s statement, the case is not removable to the circuit court of the United States.
A writ of mandamus, when issued under § 688, Rev.Stat., is for the purpose of revising and correcting proceedings in a case already instituted in the courts, and is part of the appellate jurisdiction of this Court, which is subject to such regulations as Congress shall make.
Mandamus will lie from this Court to compel a circuit court to remand a case to the state court where it is apparent from the record that the circuit court has no jurisdiction whatever, and the writ will lie even though the party aggrieved may also be entitled to appeal or writ of error.
While mandamus never lies where the party praying therefor has another adequate remedy, an appeal or writ of error at the end of a litigation, which must go for naught, is not an adequate remedy for a plaintiff whose case has been wrongfully removed from the state court to the circuit court, and held there against his protest.
The rule that mandamus will not lie to control the judicial discretion of an inferior court does not apply to an attempt of that court to exercise its discretion on subject matter not within its jurisdiction. In re Pollitz, 206 U.S. 323, and Ex Parte Nebraska, 209 U.S. 436, distinguished.
While a general appearance in the Circuit Court after removal may amount to a waiver of objection to the jurisdiction if some circuit court has jurisdiction of the cause, In re Moore, 209 U.S. 490, neither appearance nor consent can confer jurisdiction where no circuit court has jurisdiction of the controversy. Ex parte Wisner, 203 U.S. 449.
The facts are stated in the opinion.