Employers Reinsurance Corp. v. Bryant, 299 U.S. 374 (1937)
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Employers Reinsurance Corp. v. Bryant
No. 155
Argued November 20, 1936
Decided January 4, 1937
299 U.S. 374
CERTIORARI TO THE CIRCUIT COURT OF APPEALS
FOR THE FIFTH CIRCUIT
Syllabus
1. Obtaining removal of a case from a state to a federal court does not operate as a general appearance by the defendant. P. 376.
2. Where a suit in the District Court is in personam, and not within any exceptional provision extending the reach of its process, service on the defendant, to be effective, must be made within the district. P. 377.
3. An order of the District Court remanding a cause to a state court is not reviewable by mandamus. P. 378.
4. That part of the Judiciary Act of 1875, § 5, now in § 80, Title 28, U.S.Code, which provides that, if a District Court shall be satisfied at any time during the pendency of any suit brought therein or removed thereto from a state court that the suit does not really or substantially involve a dispute or controversy properly within its jurisdiction, the court shall proceed no further therein but shall "dismiss the suit or remand it to the court from which it was removed, as justice may require," and that part of the Judiciary Act of March 3, 1887, § 6, now part of § 71, Title 28, U.S.Code, which provides that an order remanding a cause to a state court shall be "immediately carried into execution" and no appeal or writ of error from the order shall be allowed, are in pari materia and, construed together, are intended to reach and include all cases removed from a state court into a federal court and remanded by the latter. P. 378.
5. Where in an ordinary action for money in personam, removed from a state court, the defendant cannot be served within the district and will not voluntarily appear, the court is without federal jurisdiction to proceed with the cause, and, under the provisions above mentioned, should either dismiss it or remand it to the state court "as justice may require." P. 381.
6. Whether justice will be better served by remand or by dismissal is determined by exercise of judicial discretion. P. 382.
7. In a removed cause, if the federal court cannot proceed because service cannot be made upon the defendant within the district, and the state court, upon a remand, could obtain personal jurisdiction because of the wider reach of its process, and if dismissal by the federal court would deprive the plaintiff of all remedy because the time allowed for filing a new suit in the state court has expired, discretion is wisely exercised to remand, rather than dismiss, the case. P. 387.
82 F.2d 373 affirmed.
Certiorari to review a judgment of the Circuit Court of Appeals denying a petition for writs of mandamus and prohibition directed to the judges of a district court for the purpose of vacating an order of remand.