55 F. 550 | U.S. Circuit Court for the District of Northern Ohio | 1893
This cause was originally brought in the district court of Floyd county, Iowa, whence it was removed to this court upon the application, of the defendant. The motion to remand filed on behalf of the plaintiff presents the question whether the removal was applied-for in time, and also whether a proper record had been filed in this court. > Those questions will not be considered, because upon the face of the record there appears another
Thus, in Insurance Co. v. French, 18 How. 404, the averment was that the plaintiffs, citizens of Ohio, complained “of the Lafayette Insurance Company, a citizen of the state of Indiana;” and it was held by the supreme court that “this averment is not sufficient to show jurisdiction. It does not appear from it that the Lafayette Insurance Company is a corporation, or, if it be such, by the law of what state it was created. The averment that the company is a citizen of the state of Indiana can have no sensible meaning attached to it. This court does not hold that either a voluntary association of persons, or an' association into a body politic, created by law, is a citizen of a state, within the meaning of the constitution.” The ruling thus made was cited and approved in the subsequent case of Muller v. Dows, 94 U. S. 444, in which case it was averred in the bill that the defendants, the Chicago & Southwestern Railway Company and the Chicago, Rock Island & Pacific Railroad Company, were citizens of the state of Iowa. The supreme court, speaking through Mr. Justice Strong, held that, “were this all that the pleadings exhibit of the citizenship of the parties, it would not be enough to give the circuit court jurisdiction of the case. In Insurance Co. v. French, 18 How. 404, a similar averment was held to be insufficient because it did not appear from it that the Lafayette Insurance Company was a corporation, or, if it was, that it did not appear by the law of what state it was made a corporation. * * * It is therefore necessary that it be made to appear that the artificial being was brought into existence by the law of some state other than that of which the adversary party is a citizen.” These decisions settle the proposition that the averment in the petition for removal, to the effect that the defendant railway company was when the suit was brought, and continued to be, a citizen of the state of Illinois, cannot be construed to be an averment that the company is a corporation, or that it was created such under the laws of the state of Illinois; and, unless these facts are made clearly to appear upon the record, the court cannot draw the legal conclusion that the stockholders are citizens of the state of Illinois. The other parts of the record do not supply this defect, but on the contrary it is averred in the original and substituted petitions that the Illinois Central Railroad Company is an incorporated company, organized and operating a railway in the state of Iowa, which averment certainly does not show that it is a corporation created under the laws of the state of Illinois. The record, therefore, fails to show that the controversy involved in the suit is one in which the adversary parties were when the suit was brought, and when the removal was