200 F. 808 | D. Mont. | 1912
When the suit was brought and issue joined, plaintiff was, has continued to be, and now is, a corporation, at citizen, and resident of the state of Montana, and defendant was, has continued to be, and now is, a corporation, a citizen and resident (1) of the territory of Arizona, admitted to the Union of states February 14, 1912, subsequent to issue joined, and (2) of the state of Arizona subsequent to the date last aforesaid. After such admission, defendant proceeded to remove the suit hither, for that it then became and thereafter was and is between citizens of different states; a copy of the record being filed herein on July 18, 1912.
The contention of defendant is that the right of removal created by the Removal Act may come into being after the time to answer has expired and can then be exercised; that in this suit the right of removal did so come into being after answer filed by reason of diversity of citizenship created by state citizenship imposed nolens volens upon defendant by Arizona’s admission as a state; and that defendant can
The contention of plaintiff is that there is no right of removal for diverse citizenship, unless the diversity existed when the suit was brought, citing in support thereof Kinney v. Columbia, etc., Ass’n, 191 U. S. 81, 24 Sup. Ct. 30, 48 L. Ed. 103, Mattingly v. Railway Co., 158 U. S. 53, 15 Sup. Ct. 725, 39 L. Ed. 894, Kellam v. Keith, 144 U. S. 568, 12 Sup. Ct. 922, 36 L. Ed. 544, and like cases.
Defendant further contends that the rule of the cases cited by plaintiff is not found in that section of the Removal Act which creates the right of removal nor in the like sections of the earlier acts, but that it is derived by construction in applying the section of said act relating to the method and time of removal; that the plain wording of the section creating the right includes the case at bar, and to exclude it is to create an exception not intended by Congress; that the line of cases cited by it sustains its contention and is controlling here, and the line of cases cited by plaintiff should be limited to the prohibition of removal for diverse citizenship created by assignment or change of domicile after suit brought. Plaintiff insists the cases are contemporaneous and reconcilable.
The rule appealed to by plaintiff was derived from express language in the Removal Act Sept. 24, 1789, c. 20, 1 Stat. 73, 79 (see Insurance Co. v. Pechner, 95 U. S. 185, 24 L. Ed. 427), and, although subsequent removal acts are in radically different language, the rule is not abol-' ished thereby. ‘ Gibson v. Bruce, 108 U. S. 561, 2 Sup. Ct. 873, 27 L. Ed. 825. See Kinney v. Association, 191 U. S. 80, 24 Sup. Ct. 30, 48 L. Ed. 103. The Removal Act here involved (Act Maixh 3, 1911,
This case not being’ removable when brought, and the Removal Act not providing for removal for diverse citizenship created. as herein pending suit, by such citizenship no right of removal came into being. To hold otherwise would be to create an exception not intended by Congress.
The cause was improperly removed, this court has no jurisdiction thereof, and the motion to remand is granted, with costs to plaintiff.