49 P. 864 | Or. | 1897
Lead Opinion
after making the foregoing statement, delivered the opinion of the court.
The record contains numerous assignments of •error, but the only ones relied upon at the argument or discussed in appellant’s brief arise out of the refusal of the trial court to surrender its jurisdiction on -the filing of the petition and bond by the defendant •for removal to the federal court, and in refusing to xule that the mortgage of $28,000 to the plaintiff, referred to in the pleadings, was a violation of the condition of the policy against incumbrances, and rendered it void. Upon the first question but little need be said. While the petition for removal avers that the plaintiff was at the time of the commencement of the action, and still is, a citizen of the State of Oregon, and that the defendant was and is a citizen •of the State of California, it was nevertheless admitted in open court by the defendant at the hearing, and made a part of the record, that the allegations of the petition on that subject are not true, but that plaintiff is, and was at the time of the commencement of the action, a citizen and resident of the State of California. The petition was treated in the court below as if it had been amended accordingly, and will be so consid
Affirmed.
[Decided October 25, 1897.]
Rehearing
On Rehearing.
delivered the opinion of the court.
Rehearing Denied.