221 F. 493 | E.D. Pa. | 1915
This case originated in a bill filed in the court of common pleas of Northampton county, Pa., sitting in equity. A petition for removal was filed by the defendants within the time limited by law, together with a bond. On this petition the state court made an order, based upon a finding that the petitioners had complied with all the requirements of the statute, directing that no further proceedings be taken in the cause and that it be removed to this court as provided by law. To this order the plaintiff entered an objection. The px-othonotary of said court of common pleas thereupon made up and certified a copy of the record. The petition for and order of removal was filed and made February 1st, and the above certificate and what purports to be the record was filed in this court on March 1, 1915. The plaintiff thereupon filed in this court a motion, to remand the cause to the court from which it was transferred. The general ground for removal is that the proceedings are irregular, and not in conformity with the requirements of the acts of Congress, and not effective to justify the removal. In order to save repetition, the specific grounds for remanding set forth will be stated in connection with their discussion.
[ 1 ] Paragraph 9 of the motion avers a noncompliance with the provisions of the Judicial Code, in that there is no proper averment of diverse citizenship, due to the omission to state that the defendants are nonresidents of the state of Pennsylvania. The provision of the Judicial Code is that a cause may be removed by the defendants therein, they “being nonresidents of that state.” The averment in the present petition for removal is that the defendants are “residents of the” state of New Jersey. The argument in support of the motion to remand is based upon the proposition that the petition must comply with the statitte by positive averments, which leave nothing to inference, and that an averment that the defendants are residents of New Jersey is not a positive, but an inferential, averment that they are nonresidents of Pennsylvania. This argument is supported by the ruling in Fife v.
The reasoning upon which these latter rulings are based has our acceptance. Jurisdiction depends upon a fact. The fact, it is true, being a jurisdictional fact, should appear. The fact, however, for its-expression is not limited to any mere formal verbiage, and it is difficult to accept the thought of residence in one place without excluding the thought of residence elsewhere. So far as affects the instant case the record of the state court malees clear the fact both of the New Jersey residence of the defendants and their nonresidence in Pennsylvania, because this fact was made the basis of an application for extraterritorial service. The petition for removal in the present case can therefore be upheld in this particular without conflict with the ruling in Fife v. Whittell.
Another ground for remanding is advanced in the second and fourth paragraphs of the motion. Section 29 of the Judicial Code requires the filing of a bond, with condition that the record of the cause in the state court shall be entered in this court within 30 days from the date of the filing of the petition. The provision in force before the enactment of the present Code was that the condition of the bond should be that the record would be entered before the first day of the then next session of this court. The bond in the present case followed the language of the old Code. It happens to be the fact, however, that the. record was entered here within 30 days. Counsel for plaintiff, in^ support of this ground for remanding, cites the case of Missouri Ry. Co. v. Chappel (D. C.) 206 Fed. 688.
The plaintiff entered a general objection in the state court to the action of that court in remanding this cause. There was at the time,
The conclusion reached is that, if the cause had proceeded in the state court with no other bond than the one as filed, the defendants could not have enforced the removal of the case; but, the state court having surrendered its jurisdiction and the case having in fact been removed, the grounds of the demand now to have it remanded have-been reduced to a mere shadow, and the remanding would be to deprive the defendants of the opportunity to do what at the time of the filing of their petition they might, and beyond all practical doubt would, have done—submitted with their petition a proper bond.
The objections to the form of the notice are also without avail as a. grounds for a remand.
For these reasons, the motion to remand is disallowed.