Jackson v. Mutual Life Insurance Co. of New York

Jackson, Judge. But two questions for the adjudication of this court are made in this record. 1st. Under the act of 1875, passed by congress for the removal of cases from the state to the federal courts, is it necessary that the petition allege specifically that the parties were citizens of different states at the commencement of the suit, as was the case under the old act of 1789 % It has been held in cases arising under that act, that the petition must show this fact distinctly on its face, and that it will not do merely to allege that the parties are citizens of different states, because those words, without more, would mean that that they were citizens at date of the application, and not necessarily at the time when the suit was commenced. The old act of 1789 is in these words“ if a suit be commenced in any state court . . by a citizen of the state in which the suit is brought against a citizen of another state . . . and the defendant shall, at the time of entering his appearance,” etc., etc.; and in the casé of the Phoenix Insurance Company vs. Pechner, the supreme court of the United States, draws a distinction between that act and the act of 1875. The court in that case says “ clearly this (that is the language used in the act of 1789, above quoted,) has reference to the citizenship of the parties when the suit is begun, [426] for the language is, if a suit be commenced by a citizen of another state, the defendant may, when he enters his appea/rcmce> petition for removal. The phraseology employed in the acts of 1866 (14 Stat., 307), 1867 (Id., 558), and 1875, (18 Stat. 470), and in the Revised Statutes (§697) is somewhat different, and we are not now called upon to give a construction to the language there used. As to the act of 1789 we entertain no doubt.” It seems from this intimation, that the highest court in the country in the construction of the acts of congress, incline to hold that under the late acts of congress the allegation need not be set out in the petition that the parties were citizens of different states when the suit was begun. We are dealing, in the case before us, only with the act of 1875. That act is in these words in substance: “ That any suit of a civil nature, at law or in equity, now pending, or hereafter brought in any state court, where the matter in dispute exceeds, exclusive of costs, the sum or value of five hundred dollars ... in which there shall be a controversy between citizens of different states . . . either party may remove, etc., etc.” It will be seen at a glance that this act covered pending cases — cases already commenced when the act was passed— and in which there shall be a controversy between citizens of different states. It would seem, therefore, that the controversy might arise in a pendi/ng case and might arise between citizens then of different states — of different states when the application was made, and not alone when the suit was commenced. However this may be, it is clear that the act of 1789 in terms referred to the commencement of the suit and the fi/rst appearance of the party, whilst the. act of 1875 contains no such language, nor intimation that the right had reference to the beginning of the suit and the situs of the parties and their citizenship then; on the contrary, the intimation, to say the least, is the other way, and such seems also to be the opinion intimated by [427] the supreme court of the United States; and while the words in the petition do not specifically allege the citizenship at the date the action was begun, yet the allegation that the corporation was made Ipy New York showing that it had always lived there, and was always, in legal parlance, a citizen thereof, and the citizenship of Jackson in Georgia, at the beginning of the suit too, appearing perhaps on the face of the petition, though indistinctly, we shall rule that the petition is sufficiently clear and full to authorize removal. ' 2. The other question made arises upon a motion to dismiss the case here, upon the ground that there has heen no final judgment in the court below. The record discloses the fact that the judge approved the bond filed on the application to remove, and indorsed his approval thereon, but did nothing further, and made no order at all for removal. The act of congress of 1875 declares that, “ whenever either party, or any one or more of the plaintiffs or defendants entitled to remove any suit mentioned in the next preceding section, shall desire to remove, etc., . . . he or they shall make and file a petition in such suit in such state court before or at the term at which said cause could be first tried, and before the trial thereof, for the removal of such suit into the circuit court to be held in the district where such suit is pending, and shall make and file therewith a bond, with good and sufficient surety, for his or their entering in such circuit court, on the first day of its then next session, a copy of the record in such suit, and for paying all costs that may be awarded by the said circuit court, if said court shall hold that such suit was wrongfully or improperly removed thereto, and also for their appearing and entering special bail in such suit, if special bail was originally requisite therein, it shall then be the duty of the state eowt to accept said petition and bond, and proceed no further i/n such suit. . . .” It appears from the words italicised, that all the act requires of the state court is to accept the petition and bond ; [428] and in this case the court did that by entering its approval thereon. This was equivalent to a judgment removing the ease, and may be considered the final judgment of the superior court, and an appeal lies to this court from it, and the writ of error will not be dismissed. The better practice would be to pass an order to remove the case, or to deny such an order, in explicit language ; but the act of congress does not require it, but provides that on the acceptance by the court of the petition and bond, the clerk shall transmit the papers to the federal court. Some point in argument was made that the court below did not designate what was to be removed to the circuit court; but no action of his is before us on this point which we can get at to review ; and we presume that the United States court will see to it that the proper record reaches that court, and at the right time. In the view we take of the case, we have no alternative under the act of congress, but to affirm the judgment of the court below, the record disclosing no error in any judgment that court made which wé can review and correct, what was done according with the terms of the act of congress of 1875. Judgment affirmed.