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CURTIN U. DECKER.

(Circuit Court, E. D. Wisconsin. January, 1881.)

1. REMOVAL-WHEN REQUISITE CITIZENSHIP Must Exist.

A cause may be removed under the act of 1875 if the required citizenship exists at the time the petition for removal was filed. 2. SAME-SAME.

The petition for removal, made by the complainant, alleged that at the date of the petition she was a citizen of the state of Illinois, and that the defendant was a citizen of the state of Wisconsin.

The defendant moved to remand, on the ground that the petition for removal did not show that the parties were citizens of different states at the time the action was commenced in the state courts. Held, that the motion to remand must be overruled. [Ed.

In Equity. Motion to Remand.
Murphey & Goodwin, for complainant.
A. G. Weissert, for defendant.

DYER, D. J. This is a case removed from the state court. The petition for removal was made by the complainant, and alleges that at the date of the petition she was a citizen of the state of Illinois, and that the defendant was a citizen of the state of Wisconsin.

The defendant now moves to remand the case on the ground that the petition for removal does not show that the parties were citizens of different states at the time the action was commenced in the state court.

The removal of the case to this court was under the act of March 3, 1875, (18 U. S. St. at Large, 470, 471.) The question involved is, therefore, whether the right to remove a case, under that act, from the state court to the federal court, is dependent upon the citizenship of the parties at the time the action was commenced in the state court. In the case of Rawle y. Phelps, 9 Cent. L. Jour, 46, the learned district judge of the eastern district of Michigan, in a carefully-considered opinion, held that to authorize a removal to the federal court, under the act of 1875, the requisite citizenship must have existed at the time the suit was commenced in the state court. The question, it is understood, has not been decided by the supreme court. It was alluded to in the opin

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ion in Insurance Co. v. Pechner, 95 U. S. 183, but was left undetermined, as that case only involved a construction of the act of 1789. The case would be truly exceptional in which I could ever differ from the learned and able judge who decided Rawle v. Phelps, without hesitation. But, upon the present question, I am constrained to take a different view of the statuto from that which he has adopted.

It must be admitted that the question is not free from difficulty, but I am unable to avoid the conclusion that by the language used in sections 2, 3, and 5 of the act of 1875, it was intended to give to parties the right of removal in case the requisite citizenship existed at the time of the application for removal. This seems to me to be the most reasonable construction of the statute, and the weight of authority appears to sustain that view. Putting the second section of the act into grammatical form, it provides that [if in) any suit of a civil nature, at law or in equity, now pending, or hereafter brought in any state court, where the matter in dispute exceeds, exclusive of costs, the sum of $500, there shall be a controversy between citizens of different states, either party may remove said suit into the circuit court of the United States for the proper district. It appears, therefore, that the act was intended to apply to all causes pending at the time the act was passed, without reference to the fact whether the federal court would have had jurisdiction at the time the suit was commenced in the state court or not. If that is the true rule as to causes pending at the time of the passage of the act, the inference seems very strong that it is applicable to causes thereafter brought in the state court. And it is not to be overlooked that the whole language of the act of 1875, in this respect, is very different from that of the act of 1789. By the terms of that act the right to remove a cause was dependent upon the existence of the requisite citizenship when the suit was commenced. There is no language to that effect in the act of 1875, and the argument, from the fact that the words used in the act of 1789 have been dropped in the act of 1875, seems very strong in favor of this view of the question, and such view also acquires additional force from

an examination of the fifth section of the act, which provides that if, in any suit removed from a state court to a circuit court of the United States, it shall appear to the satisfaction of said circuit court, at any time after such suit has been

removed thereto, that such suit does not really and substantially involve a dispute or controversy properly within the jurisdiction of said circuit court," the suit shall be dismissed or remanded to the state court. Thus a "dispute or controversy" is spoken of in the present tense; that is, at the time the court considers the question, after the cause has been removed.

I forbear to enter further upon a discussion of the question, since it has been so fully considered by other federal judges, whose opinions are entitled to great consideration. See Jack80N v. The Mut. Life Ins. Co. 3 Woods, 413; McLean v. The St. Paul & Chicago Railway Co. 16 Blatchf. 309; and Chicago, St. Louis & N. 0. R. Co. v. McComb, 9 Rep. 569.

In Johnson v. Monell, 1 Woolworth, 390, Mr. Justice Miller held that under the act of 1867, for the removal of causes, the right of removal was not limited to parties who were citizens of different states at the time the suit was commenced, and that, at least by the strongest implication, it provided otherwise. As the language of the act of 1867 is in substance like that of the act of 1875, the construction put upon the former act by Mr. Justice Miller is strongly applicable to the statute of 1875.

In McGinnity v. White, 3 Dill. 350, which was a case removed under the act of 1866, Judge Dillon cited Johnson y. Monell as authoritative, and, speaking of the acts of 1866 and 1867, said: “As both acts give the right to apply for the removal at any time before the trial or final hearing of the cause, I can see no difference, in this respect, between the act of 1866 and the act of 1867; and the reasoning in the case cited (Johnson v. Monell) seems to be applicable here, and to favor the right of removal." And, although pending the action in the state court the defendant had removed from the state of which both parties were citizens when the action was commenced, Judge Dillon sustained the right of removal.

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The view taken of the question by Judge Woods and Judge Blatchford, in the cases cited, (3 Woods, 413; 16 Blatchf. 309; and 9 Rep. 569,) has also been adopted by the supreme court of Georgia in Jackson y. The Mut. Ins. Co. 60 Ga. 423, and by the supreme court commission of Chio in Phoenix Life Ins. Co. v. Saettel, 7 Cent. L. Jour. 398.

I hold, therefore, upon what I regard the weight of authority, and as a correct interpretation of the act of 1875, independent of authority, that the right of removal under that act is not dependent upon citizenship when the suit was commenced in the state court, but that if the required citi. zenship exists at the time the petition for removal is filed in the state court, that is sufficient.

Motion to remand overruled.
NOTE. See Beede v. Cheeney, infra

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1. REMOVAL-BOND APPROVED BY STATE COURT.

In a case of removal the jurisdiction of the federal court does not depend upon the form or substance of the bond approved by the state

court. & SAME-WHEN REQUISITE CITIZENSHIP Must Exist.

A cause cannot be removed under the act of 1795, unless the required citizenship existed, not only when the petition for removal was filed, but also at the time when the action was begun in the state

court. 1. SAME-SAME.

A petition for removal stated that the defendants are residents of another state. Held, that the cause must be remanded, upon the ground that the petition was in the present tense.-- ED.

Motion to Remand.
M. 0. Little, for plaintiff.
A. Oppenheim and W. P. Warner, for defendant.

McCRARY, C. J. In this case there is a motion to remand on the ground that the bond accepted by the state court to secure the filing of the transcript in this court, and the payment of

any costs that might arise because of the wrongful removal, is not such a bond as the statute requires. We are of opinion that the jurisdiction of this court in a case removed from a state court does not depend upon the form, nor even upon the substance, of the bond which is presented to and approved by the state court before removal. If the statute in other respects is complied with, and a copy of the record is filed here in accordance with the statute, the removal is complete. But, upon looking into this record, we observe what counsel seem to have overlooked—the petition for the removal of the cause into this court is in the present tense. It states that the defendants are residents of another state. Under the judiciary act of 1789 the supreme court has held that the record must show the citizenship of the parties at the time of the commencement of the action. In a case recently decided in St. Louis, where Justice Miller was present in court, it was held that the same rule prevails under the act of 1875, and that the petition for removal under that act must also show the citizenship of the parties at the time of the commencement of the action, and not at the time of the application for removal. On that ground, therefore, this case must be remanded. Although the motion does not present that question, the court is bound as to that jurisdictional matter, and to take notice of it without any formal motion.

NOTE. See Curtin V. Decker, supra

OSBORN 0. OSBORN and others.

(Circuit Court, D. Minnesota. December, 1880.) 1. REMOVAL-LOCAL PREJUDICE ACT-FINAL HEARING IN STATE COURT.

The submission of a case to a jury does not constitute a “final hear. ing," within the meaning of the “local prejudice act," when there

has been a partial disagreement as to the verdict. & CHANCERY CASE-VERDICT OF JURY-MINNESOTA STATUTE.

Under the peculiar provisions of the statute of Minnesota, the submission of the facts of a chancery case to a jury render the verdict a necessary part of the final trial of the cause.—ED. Motion to Remand.

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