Case v. Douglas

DILLON, Circuit Judge. The motion to remand must be granted. The application for removal was based upon the act of March 2, 1807 (14 Stat. 558). This act provides, under certain circumstances, for such removal where “there is a controversy between the citizen of the state in which the suit is brought, and a citizen of another state.” This language is taken from the judiciary act, and, so far as respects the question now presented, its meaning had been judicially determined long before the act of March 2. 1867, was passed. In adopting that language in the later act, congress must be taken to have adopted also its settled construction, which is that where the interest is joint each of the parties concerned therein must be competent to sue in the federal courts, and this competency must appear on the record. Strawbridge v. Curtiss, 3 Cranch [7 U. S.] 267; Corporation of New Orleans v. Winter, 1 Wheat. [14 U. S.] 91; Moffat v. Soley [Case No. 9,688]; Commercial & Railroad Bank v. Slocomb, 14 Pet. [39 U. S.] 60: Irvine v. Lowry, Id. 293; Bank of Cumberland v. Willis [Case No. 885]; Allin v. Robinson [Id. 249]; Susquehanna & W. V. Railroad & Coal Co. v. Blatchford, 11 Wall. [78 U. S.] 172; Sands v. Smith [Case No. 12,305.] Applying these principles to the present case, it is obvious that the removal was improperly ordered, since it does not appear that all of the plaintiffs were citizens of Nebraska. For aught that is shown one of them may be a citizen of the same state as the defendants. The case is distinguishable from that of Sands v. Smith [supra], where the right of removal given by the judiciary act was held to be affected by the act of February 28, 1839 [5 Stat. 321]. and of July 27. 1866 [14 Stat. 306], in relation to defendants. Motion granted.