12 F. Cas. 600 | U.S. Circuit Court for the District of Eastern Texas | 1878
The plaintiff moves to remand the same on the ground that the causes of removal were insufficient. The plaintiff, in support of the motion to remand, contends that this suit does not really and substantially involve a dispute or controversy properly within the jurisdiction of this court. That the petition for removal was insufficient, presenting no legal ground . for removal; that the amended .petition was unauthorized by law; that the order for removal was made on a day subsequent to the appearance of the defendants; that the petition and exhibits attached thereto are variant and contradictory; that at the date of the amended petition the plaintiff was a citizen of Texas. It was stated by the plaintiff, in certain exceptions filed in the state court, that he obtained his naturalization as a citizen of the United States after the commencement of the suit, and before the filing of the amended petition.
We think that the motion to remand the cause cannot be granted. In our view, either of the causes of removal set forth in the petition was sufficient.
First. The defendants justify the alleged trespasses under the authority of a court of the United States, and under the laws thereof. This presepts a case arising under the laws of the United States, and is within the terms and meaning of the second section of the act of congress approved March 3, 1875, entitled “An act to determine the jurisdiction of circuit courts of the United States,” etc. (18 Stat. 470). Such a defense set up in a suit in the state court, and overruled there, would clearly entitle the defendants to carry the case, by writ of error, to the supreme court of the United States, both under the 25th section of the old judiciary act [1 Stat. 85], and under the act of 1867 [14 Stat. 385], passed in lieu thereof. But the only ground on which it could be thus made reviewable by that court, is that it is a case “arising under the constitution or laws of the United States;” and if it is such a case, then it is removable to the circuit court of the United States under the second section of the act of 1875, supra. It may be objected to this view, that it does not appear that the defendants will adhere to the justification set up in their petition for removal, when the cause shall proceed in the circuit court of the United States; that, when there, they may elect to adopt some other defense. But as this would be a fraud upon the court, and upon the course of justice, after having obtained the removal of the cause on that ground, the circuit court will take care that
The second ground of removal, namely, the alienage of the plaintiff and the Texas citizenship of the defendants (which also arises under the second section of the act of 1875), is also sufficiently alleged in the petition. It is true, the petition only alleges that the plaintiff was an alien when he filed his suit in the district court for Galveston county, and does not allege that he still remained an alien at the time of filing the amended petition for removal. But we think the allegation was .sufficient. It was lately decided by the supreme court in the case of Insurance Co. v. Pechner, 95 U. S. 183. that, under the judiciary act of 1789, the requisite citizenship for the removal of a cause from a state court to a federal court must exist at the commencement of the suit in the state court. It is. true, the court drew its conclusion from the language of the 12th section of the judiciary act, which was, “that if a suit be commenced in any state court by a citizen of the state against a citizen of another state,” etc., then the cause might be removed; and the language of the act of 1875 is different, and is - not so explicit on this point. But we think that the intent of the act is the same. Its language is, “that any suit of a civil nature at law or in equity, now pending or hereafter brought in any state court, * * * in which there shall be a controversy between citizens of a state and foreign states, citizens or subjects, etc., either party may remove said suit,” etc. The description here given of a suit that may be removed embraces a suit in which the parties have the requisite citizenship or alienage at the time of its commencement; and as that was the time fixed by the previous law for ascertaining this condition or status of the parties, it may very properly be construed to be the time intended by the present law for the same purpose. It is convenient to have some fixed and definite time. The commencement of the suit is the most convenient and reasonable time. If a subsequent time were fixed, it would involve a necessary shifting and changing of jurisdiction. We shall adhere to the old rule as within the intendment of the present law until some other rule shall be adopted by the superior court.
The formal objections to the removal of the cause are not tenable. There is no good reason why a defendant should not be allowed to amend his petition, if by-inadvertence it is imperfect as first presented. It is contended that it cannot be amended in so important a matter as that of being verified by affidavit, where the original petition is not so verified; in other words, that the original must be considered as no petition. We do not perceive why this result should follow. The statute does not require a verification, though it is eminently proper that the petition should be verified.
It is said that the order of removal was made on a day subsequent to the appearance of the defendants. The act of 1875 does not require that the order should be made before appearance. It only requires that the party desiring a removal shall make and file a petition therefor “before or at the term at which said cause could be first tried, and before the trial thereof.” • Section 3.
Without going into further detail, we may say that no sufficient ground has been pointed out for remanding the cause. The motion is overruled.
