64 Iowa 599 | Iowa | 1884
Tbe record sliows that tbe plaintiff commenced a prior action for tbe same injuries, which was transferred to tbe federal court, and there tried before a jury, which resulted in a disagreement of tbe jury. Thereupon said action was dismissed by plaintiff. In tbe petition in tbe present case, tbe plaintiff stated that be was a resident and citizen of the state of Illinois, in which state tbe defendant was incorporated and of which it is a citizen.
Tbe defendant moved tbe court to require plaintiff to give security for costs, and tbe motion was based on an affidavit of IT. G-. Burt, superintendent of the Iowa division of the defendant, in which it was stated “that tbe plaintiff is a non-resident of tbe state of Iowa, as lie claims in bis petition
Afterward the defendant filed a petition in due and proper form, stating that the defendant was a resident of the state of Illinois, and the plaintiff a citizen of the state' of Iowa, and that the amount in controversy exceeded five hundred dollars, and asked that the action be transferred to the federal court. The petition was verified, and it was accompanied by a sufficient bond, conditioned according to law. The circuit court refused the transfer and dismissed the petition, and this is assigned as error.
No objection is made to the sufficiency of the petition for removal, or to the bond; but counsel for the appellee contends that the court rightly refused the transfer, because it appeared of record that the plaintiff was a resident of the state of Illinois.
The petition for removal being in strict compliance with the act of congress, we are of the opinion that the circuit court was ousted of jurisdiction, and the transfer to the federal court should have been ordered, or, at least, that the petition asking the removal should not have been dismissed.
It practically was immaterial whether a transfer was ordered - or not, if the petition was sufficient, and the state court was ousted of jurisdiction. This is not a case where the petition for removal, or the bond, is in any respect defective. The statement in the petition of the plaintiff, that he was a citizen of the state of Illinois, is immaterial. It is not essential that such petition should be verified, and, therefore, such a statement could readily be made in every case.
The affidavit made by Burt cannot have the effect of an estoppel. The plaintiff was in no respect misled thereby. Because of it, the plaintiff was required to give a cost-bond, but this had no effect on the jurisdictional question. Conceding that we have the fight to look at the whole record for the purpose of ascertaining whether the plaintiff is a citizen of Iowa or not, and that we are authorized to weigh the evidence, we
Eeversed.