Orosco v. Gagliardo

Crocker, J. delivered the opinion of the Court—Cope, C. J. and Norton, J. concurring. This is an application to this Court for a writ of mandamus, to issue to the District Judge of the Thirteenth Judicial District, commanding him to remove the said cause to the United States Circuit Court for the Horthern District of California, under and in pursuance of the Act of Congress of September 24th, 1789, and the statute of this State of April 9th, 1855. The application for a transfer of the cause was made by the defendant in the District Court of Mariposa County, on the ground that he was an alien, and that the plaintiff was a citizen of the State of California. The plaintiff, in answer to the application, showed that he was also an alien and not a citizen—that he had only filed his declaration of intention to become a citizen and had never taken the final oath of citizenship. The District Court, on this state of facts, refused to transfer the cause, and the defendant now applies to this Court for a peremptory mandamus, to compel the transfer. We think the District Court properly refused the application. The plaintiff in this case is not a citizen of this State, or of the United States. He does not become entitled to the full rights and privileges of citizenship until he has taken the final oath, as required by the naturalization laws. (Baird v. Byre, 3 Wallace, Jr., cited in Brightly’s Digest, 9, note h.) Until he takes the final oath he may retract his intention and decline to avail himself of the rights of citizenship, and could, if he desired, still claim the privileges of a subject of a foreign power. It is well settled that the United States Courts have no jurisdiction over suits between alien and alien, but that they are confined to actions between citizens and foreigners where then.’ jurisdiction is founded upon citizenship. (Mossman v. Higginson, 4 Dallas, 12; Montalet v. Murray, 4 Cranch, 46; Hodgson v. Bowbank, 5 Id. 303; Jackson v. Twentyman, 2 Pet. 136.) It follows that the defendant had no right to have the cause removed to a United [86] States Court; and if it had been so removed, upon the time facts appearing to the latter Court, it would have been compelled to remand the case back for want of jurisdiction. The statute of this State, respecting the removal of causes from the State Courts to the United States Court, provides, that when the petition is filed and the surety is offered, “ it shall then be the duty of such Court of this State to accept the surety and proceed no further in the cause; and all subsequent proceedings which may be taken or had in such Court in contravention of the provisions of this section shall be void and of no force or effect for any purpose whatsoever.” The defendant contends that, under this provision, when the petition is filed and the surety is offered, the State Court can do no further act in the case, except to accept the surety and order the removal. This is not the proper construction. The Court must first be fully satisfied by proper evidence that the application for removal is founded upon facts which entitle the applicant to the order, and for this purpose the Court has a right to inquire into the truth of the facts set forth in the petition, as well as investigate the sufficiency of the surety, and determine the matter accordingly. We see no error in the decision of the Court below; the motion for a mandamus is therefore denied.