84 F. 413 | U.S. Circuit Court for the District of Washington | 1898
This is an action at law commenced in the superior court of the state of Washington for King county, by E. P. Tremper, in his capacity as receiver of the Spring Hill Water Company, a corporation organized under the laws of the territory of Washington, against the defendants, as co-partners, under the firm name of Schwabacher Bros,., upon an alleged liability of said firm. The summons was served only upon the defend
1. While the decisions of the supreme court establish the principle that the facts necessary to authorize a circuit court of the United States to take jurisdiction of a cause originally commenced in a state court, and in which the right of removal has been exercised, must appear in the record at the time of removal, and that the jurisdiction of a circuit court cannot be sustained by amendments of the record made after removal, if the court would not have jurisdiction without such amendments (Crehore v. Railway Co., 131 U. S. 240-245, 9 Sup. Ct. 692; Jackson v. Allen, 132 U. S. 27-34, 10 Sup. Ct. 9), still, where the jurisdictional facts are stated in a petition for removal in an imperfect manner, the circuit court may allow amendments for the purpose of making a good record. The latest decision of the supreme court bearing upon the question at issue which I have found is in the case of Martin’s Adm’r v. Baltimore & O. Ry. Co., 151 U. S. 673-710, 14 Sun. Ct. 540. In the opinion by Mr. Justice Gray the rule as to amendments is stated as follows:
*415 “The Incidental suggestion, in that opinion [referring to the case of Ayers v. Watson, 113 U. S. 594-599, 5 Sup. Ct. 641], that the petition for removal might be amended in the circuit court as to the form of stating the jurisdictional facts, assumes that those facts are already substantially stated therein, and accords with later decisions, by which such amendments may be allowed when, and only when, the petition, as presented to the state court, shows upon its face sufficient ground for removal. Carson v. Dunham, 121 U. S. 421-427, 7 Sup. Ct. 1030; Crehore v. Railway Co., 131 U. S. 240, 9 Sup. Ct. 692; Jackson v. Allen, 132 U. S. 27, 10 Sup. Ct. 9.”
Tested by this rule, I consider the grounds for allowing the amendment asked for in the case to be ample. The petition for removal is defective iu this: that instead of alleging positively and with directness that the plaintiff is a citizen of the state of Washington, and that the petitioners’ two co-defendants are citizens of the state of California, it alleges that lhe plaintiff is a citizen and resident of the city of Seattle, in the state of Washing'ton, and said co-defendants are citizens and residents of the city of San ¡francisco, in the state of California, leaving an inference to be drawn therefrom that said parties, respectively, are citizens of the states in which they reside. Taking into account the general laws of the stale of Washington and of the state of California, prescribing the qualifications of citizens of municipal corporations, of which laws the federal courts are required to take judicial notice, in connection with the general conclusion stated in this petition for removal that the controversy in the action is between citizens of different states, the inference that the plaintiff was at the time of the commencement of the action, and at the time of removal proceedings, a citizen of the state of Washington, and that the petitioner’s co-defendants at said times were citizens of the state of California, is a necessary inference. But legal conclusions and argumentative allegations of jurisdictional facts are not sufficient in a petition for removal. Instead of conclusions and inferences, the court must have set before it, in the record, positive and clear statements of all the jurisdictional facts. Therefore this petition is imperfect iu form, and needs amending, although it cannot be said that the necessary jurisdictional facts are not shown substantially, since it does specify the ground of jurisdiction upon which the petitioner claimed the right of removal, and supports the general conclusion by statements which would be proper evidence in his faVor upon trial of the issue, if the allegation were denied. The state laws being read into the petition, it does state the necessary jurisdictional facts, and shows upon its face sufficient ground for removal of the cause into this court; and I will therefore grant the aj)plication to amend, so that the facts may he stated in a more formal and direct manner.
2. The Code of the State of Washington provides that in actions against two or more defendants^ if the summons is served upon one or more, but not on all of them, the plaintiff may proceed as follows:
“If the action Is against the defendants jointly, indebted upon a contract, he may proceed against the defendant served, unless the court otherwise directs; and, if he recovers judgment, it may be entered against all of the defendants thus jointly indebted so far only as it may be enforced against ilie joint properly of all and the separate property of the defendants served * * *” 2 Ballinger’s Codes & St. Wash. § 4881.