Ex Parte Wisner
Is it still good law? What later courts have actually done to this case.
Status
53 later cases cite Ex Parte Wisner; 53 of those citations sat close to treatment language and were flagged for reading, and all of them have been read. Citations that did not sit near treatment language were not flagged and were not read one by one, so a court that weakened this case without using any of that language would not appear here.
Relying on Ex Parte Wisner?
This page shows what later courts did to it. Ask about your specific facts and see whether it still carries your argument, with citations you can check.
Treatments
Overruled
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The Supreme Court overruled Wisner’s rule that a diversity action could not be removed when neither party lived in the forum state.
Lee v. Chesapeake & Ohio Railway Co. · Supreme Court of the United States · filed
The plaintiff’s contention to the contrary is predicated largely on a decision by this Court in Ex -parte Wisner, *659 203 U. S. 449, which, it must be conceded, .is not in accord with the views expressed in this opinion. ... and now on further consideration we feel constrained to pronounce it essentially unsound and definitely to overrule it.
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Overruled in part
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The Supreme Court disapproved Wisner’s use of mandamus to review a civil remand ruling.
Ex Parte Harding · Supreme Court of the United States · filed
Under these circumstances it becomes our plain duty, while not questioning the general doctrine announced in any of the cases, yet to disapprove and qualify Ex parte Wisner, In re Moore and In re Winn to the extent that those cases applied the exceptional rule of Virginia v. Rives,
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Limited
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The Supreme Court held that Wisner’s statement about jurisdiction despite both parties’ consent was unnecessary and did not change the rule on waiver.
In re Moore · Supreme Court of the United States · filed
There was no pretense of any consent on the part of the plaintiff in that cáse, and therefore this statement was unnecessary. In order, however, to prevent future misconception we add that nothing in the opinion in the Wisner case is to be regarded as changing the rule as to the effect of a waiver in .respect to a particular court.
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The district court confined Wisner to removal into a district where neither party resided and declined to extend it to removal to the defendant’s home district.
Park Square Automobile Station v. American Locomotive Co. · Northern District of New York · filed
In the whole opinion in this Wisner Case there is no suggestion that Beardsley could not have removed the: cause to the District Court of his residence and state citizenship, except the remark found on page 457 of 203 U. S., and page 152 of 27 Sup. Ct. (51 L. Ed. 264), viz.: “As it is the nonresident defendant alone, who is authorized to remove, the ‘Circuit Court for the proper district’ is evidently the Circuit Court of the district of the residence of the plaintiff.” As the suit might have been brought in the district of the residence of the defendant, this court is of opinion “defendant” is what was in*989tended. Really the Wisner Case decided that Beardsley, by filing his petition for removal into the Circuit Court of the United States for the Eastern District of Missouri, did not waive the objection that he was in effect sued in the wrong district, and also, as heretofore stated, that the Circuit Court of the United States had no jurisdiction, for the reason defendant could not have been sued there, and plaintiff could not have brought > his suit there.
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Declined to follow
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The district court allowed removal despite Wisner’s contrary rule for a diversity action in a state where neither party resided.
Sanders v. Western Union Telegraph Co. · Northern District of Georgia · filed
Believing, as I do, therefore, that if the Supreme Court of the United States has not by its action in cases decided by it since the Wisner Case in effect reversed that case, I think, as Judge Cochran did in the case of Louisville & Nashville R. R. Co. v. Western Union Telegraph Co., that if the Supreme Court was deciding this question now, it would squarely reverse the Wisner Case, and hold that a remand should not be granted in a case like this. Feeling that way, I am compelled to hold that this case was removable, and consequently should not be remanded; and it will be so ordered.
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Criticized
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The Supreme Court called Wisner’s understanding of the 1887–1888 Act a misconception and identified Lee as the decision that overruled it.
Neirbo Co. v. Bethlehem Shipbuilding Corp. · Supreme Court of the United States · filed
A cognate misconception as to the purpose of the Act of 1887-88 in contracting the jurisdiction of the circuit courts underlay the decision in Ex parte Wisner, 203 U. S. 449, overruled in Lee v. Chesapeake & Ohio Ry. Co., 260 U. S. 653, 659.
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Does this case still carry your argument?
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