Stoker v. Leavenworth

| La. | Oct 15, 1834

Martin, J.,

delivered the opinion of the court.

The defendants in this case made several applications, filed several affidavits and surety bonds, and obtained several and separate orders for the removal of the present suit, to the District Court of the United States. The plaintiff took a separate appeal in each, and has filed a separate assignment of errors as follows:

„ Entering aformal appearance cfvU^suitf is unknown to the practice inLiornsiana. Filing a plea, w\T,Pis°tUroniy entl7of aPPear- and in an appliremoval of a cwt'fiHn^thé petition for such removal, is evidence of the de^®u^ant’aaPPeai- where a de[?ndant. ?JJe.ses the plaintiff is a citizen ofacertain parish, as appem:s ¡Jy hlspeti^fpfanlideiTHM, to be suffi0f citizenship'.0”

1. The court erred in permitting the petition for a removal of the cause to be filed before, and without an appearance being entered.

2. The court erred in ordering the removal, as it was not legally shown, that the plaintiff is a citizen of Louisiana; and that both the defendants are not; and that each defendant did not allege his co-defendant was not a citizen of said state. That the affidavit of one of the defendants, is not absolute, but qualified, being according to the best of his knowledge and belief

3. That the court erred in refusing leave to take judgment by default.

4. And finally in refusing leave to file exceptions and counter affidavits, and thereby show, that the defendants were citizens of Louisiana.

5.Thatoneof the defendants, by admitting he was stationed in command of a military post, within the state of Louisiana, - i • h- „T . . was from his own showing, a citizen of Louisiana.

I. The entry of a formal appearance of a defendant, is unkown to the practice in Louisiana. The filing a plea 1 . . . 01 or answer, or taking any notice in court, is the only evidence of such appearance which the record presents, or the law requires. In the present case, the filing of the petition for removal of the cause, was evidence of the defendants appearance.

II. Both petitions for the removal, were filed simultaneously, The petitioners allege, that the plaintiff is a citizen of Louisiana, and a resident of the parish of Natchitoches, as is alleged . , . .. _ . -i-,, , . . .. . m his petition. It is contended, that this is not a positive and absolute, but a qualified allegation, and that the citizenship is presented, merely as a consequence of the alleged residence; that although the residence of a citizen of another state, ° . renders him a citizen of the state in which he resides, the ., . vi. , ,i re , residence of an alien has not the same effect.

This court is of opinion, that the words, as appears by the petition, may well be taken as a reference to what actually appears in that document, that is to say, the residence in the parish, and not to what does not appear therein, viz: the citizenship.

Where a person swears uto the best of his knowledge and belief ” it is sufficient, and. the addition of this qualification does not detract from the strength of the oath. When a proper case is made for the removal of a cause to the TJ. S. Court by the defendant, no judgment by default is permitted, but the court is bound to order the removal 2725-tanter. Exceptions or counter affidavits are not allowed against a proper application of a defendantfor the removal of the suit against him totheÚ.S.Court. No affidavit to disprove the allegation for the removal of a cause to the U. S Court willbeadmitted.

The applications, though several, being simultaneous, and having the same object in view, maybe considered as the joint application of both defendants, who may have been induced to make them in this way, because neither could aver and swear to the citizenship of the other, or they may have found it convenient to give security for both. Each swears to his own citizenship, and each may use the affidavit of his co-defendant, to satisfy the court of the citizenship of the other-A proper case being presented, the court might have made a single order of removal, and the case is not altered by two separate orders having been made.

Many have doubted, and this court has expressed its opinion, that it shared in the doubt, whether the addition in the affidavit, that the affiant swears to the best of his knowledge and belief, is not such a qualification of the oath, as may enable the party to avoid a conviction of perjury.

After the most mature consideration, our minds have come to the conclusion, that as the party swears to the best of his knowledge, he could not shelter himself under an allegation, that he swore according to his belief only. The oath, in fact, is not according to the best of his knowledge or belief. We, therefore, conclude, that the addition'of this formula, detracts nothing from the strength of the oath.

III. When the defendant has made out a proper case for a removal, the State Court is bound to abstain from the further cognizance of the cause, and to order the removal of it instanter. It cannot, therefore, allow judgment to be taken by default.

IV. Neither can the State Court act on, or receive exceptions or counter affidavits, in cases of this kind.

V. No attempt to disprove the allegations of the defendants, made in their affidavits, can be allowed. Applications for the removal of a cause, are to be disposed of in a summary way.

VI. The defendants have indeed shown, that, as officers of the army, in the service of the United States, they had been for a long time, in the performance of garrison duty, in one of the fortifications within the state of Louisiana. But this, in our opinion, does not deprive them of any right they may claim, as citizens of the state in which they resided, and exercised the rights of citizenship, when called out of it and ordered into the service of the United States. They cannot be deprived of such rights, without their consent. A voluntary residence in another state, than that in which one was a f 3 citizen, is evidence of an intention to abandon with the residence, the rights that result from it, when the.removal is made in pursuit of the affairs or pleasure of the person concerned, but not when a citizen leaves his state, to serve the United States, out of the limits of his own state for a time.

Officers of the tedVtates6 U?tálio;'e.d dujy m this slate, do not cease to be state in which ®"d rights of eitizeninto servíle.ídled

It is, therefore, ordered, adjudged and decreed, that the judgment of the District Court be affirmed, with costs.