1. When it appears from the record in this court in a cause commenced in a state court, and removed to a Circuit Court of the United States on the ground of diverse citizenship, and proceeded in to judgment there, that the citizenship of the parties at the time of the commence- ment of the action, as well as at the time of filing the petition for removal, was not sufficiently shown, and that therefore the jurisdiction of the state court was never divested, the defect cannot be cured by amendment, and the judgment of the Circuit Court will be reversed at the cost of the plaintiff in error, and the cause remitted to that court with directions to remand it to the state court. Jackson v. Allen, 27.
2. On the facts stated in the opinion it is held, that there is no separable
controversy in this case; but that if there were, the provision as to the removal of such a controversy has no application to a removal on the ground of local prejudice. Young v. Parker, 267.
3. In order to the removal of a cause from a state court on the ground of local prejudice, under Rev. Stat. § 639, it is essential, where there are several plaintiffs, or several defendants, that all the necessary parties on one side be citizens of the State where the suit is brought, and all on the other side be citizens of another State or other States; and the proper citizenship must exist when the action is commenced as well as when the petition for removal is filed. Ib.
4. A bill in equity was filed in a state court by a creditor of a partnership to reach its entire property. The prayer of the bill was that judg ments confessed by the firm in favor of various defendants, some of whom were citizens of the same State with the plaintiff, might be set aside for fraud. On the allegations of the bill there was but a single controversy, as to all of the defendants. One of the defendants, who was a citizen of a different State from the plaintiff, removed the entire cause into a Circuit Court of the United States. After a final decree for the plaintiff, and on an appeal therefrom, this court held that the case was not removable under § 2 of the act of March 3, 1875, 18 Stat. 470, and reversed the decree, and remanded the case to the Circuit Court, with a direction to remand it to the state court, the costs of this court to be paid by the petitioner for removal. Graves v. Corbin, 571.
5. Under the act of March 3, 1875, c. 137, § 2, one of two corporations sued jointly in a state court for a tort, although pleading several cannot remove the case into the Circuit Court of the Unite at upon the ground that there is a separable controversy betwe the plaintiff because the other corporation was not in existence at i's time of the tort sued for without alleging and proving that the two corporations were wrongfully made joint defendants for the purpose of preventing a removal into the federal court. Louisville & Nashville Railroad Co. v. Wangelin, 599.
SERVICE OF PROCESS.
See CONSTITUTIONAL LAW, A, 10.
STATEMENT OF FACTS.
See PRACTICE, 2.
See TABLE OF STATUTES CITED IN OPINIONS.
A. CONSTRUCTION OF STATUTES.
The preamble to a statute is no part of it, and cannot enlarge or confer powers, or control the words of the act unless they are doubtful or ambiguous. Yazoo & Mississippi Valley Railroad Co. v. Thomas, 174.
See MUNICIPAL CORPORATION, 4, 5.
Although a bill to impeach a judgment at law is regarded as auxiliary or dependent, and not as an original bill, the supersedure of process on the decree dismissing the bill does not operate to supersede process on the judgment at law. Knox County v. Harshman, 14.
1. Exemptions from taxation, being in derogation of the sovereign author- ity and of common right, are not to be extended beyond the express requirements of the language used, when most rigidly construed. Yazoo & Mississippi Valley Railroad Co. v. Thomas, 174.
2. The appellant's charter provided that it should be exempt from tax- ation for a term of twenty years from the completion of said railroad to the Mississippi River, but not to extend beyond twenty-five years from the date of the approval of this act;" Held, that the exemption was intended to commence from and after the completion of a rail- road to the Mississippi River, and was to continue thereafter for twenty years if the road was completed to the river in five years from the date of the approval of the act, but liable to be diminished by whatever time beyond five years was consumed by the completion of the road to the river. 1b.
See CONSTITUTIONAL LAW, A, 8, 9; INTErnal Revenue; JURISDICTION, A, 3.
See CONSTITUTIONAL LAW, A, 1, 10;
LOCAL LAW, 5 to 17.
UNITED STATES.
See CONTRACT, 3, 4;
DISTRICT OF COLUMBIA, 3;
POST-OFFICE DEPARTMENT.
1. Under the organic act of that Territory the power to appoint an auditor of public accounts is vested exclusively in the governor and counci Clayton v. Utah, 632.
2. So much of the acts of the legislature of Utah of January 20, 1852, and February 22, 1878, as relates to the mode of appointing an auditor of
public accounts is in conflict with the organic act, and is invalid; but so much as relates to the creation of the office is valid. Ib.
See CONSTITUTIONAL LAW, A, 11; JURISDICTION, A, 9.
VERDICT.
See PRACTICE, 1.
VOLUNTARY PAYMENT. See FRAUD, 4.
This son
The will About six
R., a citizen of Texas, made his will there June 7, 1848, by which he de- vised all his property including the real estate in controversy, (1) to his wife for twenty-one years after his death; (2) after that to his off- spring, child or children by his said wife; (3) in the event of the death of his wife without offspring by him, to the children of M. by M.'s then wife, who was a sister of R.'s wife; (4) in the event of the death of the offspring which he might have by his wife, to his wife for life. M. was named as executor of the will. R. died Janu- Iary 10, 1850, leaving surviving his wife and an infant son. was born after the making of the will and died in 1854. was duly proved by the executor shortly after R.'s death. months after R.'s death his widow married F., by whom she had sev- eral children. Two years after the probate of the will F. and his wife commenced proceedings to have the will declared null and void on the ground that the property was communal property. In these proceedings the executor was defendant, and a guardian ad litem was appointed for the infant, and such proceedings were had therein that in October, 1852, a decree was entered, declaring the will to be inll and void, and setting it aside; Held, (1) That the devise to the children of M. was a contingent remainder, to vest only in case of the death of the testator's wife without offspring by him, and limited after the fee which was primarily given to the testator's child; (2) That the executor being a defendant and appearing and answering, and the infant son being represented by a guardian ad litem, and the ex- ecutor being interested on behalf of his own children that the will should stand, (if that was of any consequence,) all the necessary par- ties were before the court to sustain the decree; (3) That the decree could not be attacked collaterally, and was binding on the children of M. Miller v. Texas & Pacific Railway Co., 662.
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