26 S.E. 169 | N.C. | 1896
The defendant thereupon moved this Court that it proceed no further in said cause as to said defendant.
His Honor refused the motion, and the said defendant appealed.
There were many questions raised in the record, all of which were discussed at length in the argument here. It is unnecessary, however, for us to consider but a single one of them. Both the affidavits for the removal of the cause from the State Court *468
(745) to the United States Circuit Court and the order of his Honor, Judge Dick, of the latter court, directing its removal, are fatally defective in their most material and necessary features. The affidavit shows that the petitioner (the defendant in the action) was, at the time the affidavit was made, a resident and citizen of the State of South Carolina, and that the plaintiff was at that time a resident and citizen of the State of North Carolina, and the order of removal only recites the citizenship of the parties as it was set out in the petition. It does not appear affirmatively, either in the petition or in the order of removal or anywhere else in the record, that the diverse citizenship of the parties existed also at the time of the commencement of the action. And for that reason the order is a nullity, the Circuit Court not having jurisdiction to make the order on the affidavit. Stevens v. Nichols,
NO ERROR.
Cited: Mecke v. Mineral Co.,
(746)