WOLFF V.' ABOHmALD.
and others v. AnoHmALD.
(Oircuit Oourt, D. Mi,mesota. December Term, 1882.)
REMOVAL OF CAUBE-PETITION.
The allegations of the petition for removal are jurisdictional, and they mllst be positive and certain i and the allegation that the defendant is an aheu, " as plaintiff is informed and verily believes," is inllufficien.t,
Children of the United Statell who are born in foreign countries are citizens of the United States. In sal cases there is douptas to the jurisdiction, in a cause removed, the safer practice is to remand the cause to the stale court.
, :;. SAME-;JURIiIDICTION-REMAl'iDING CAUf>E.
Motion, to Remand. . Brown cf; Cheu, for plaintiff·. A. E. Bowe and Geo. N. Baxter, for defendant. MCCRARY, C. J., (orally.) We h,ave considered the motion to remand. This cause was removed here by the plaintiff on the ground that the defendant 13 an alien. The allegation of the petition for removal is that the defendant is,an alien, as plaintiff is informed and verily believes. rbis, we think, is insufflcient; the allegations of the petition for removal are jurisdictional, and they must be positive and certain, because the court cannot well proceed to taIte jurisdic. tion of a case and try the same as long as there is any doubt upon the question of jurisdiction, and it has, we think, been held that a petition for removal in this form is not good. Besides, it appears by the affidavits filed here that, to say the least, it is a question of grave doubt whether the defendant is an alien or not. His father was a native-born citizen of the United States, born in the state of Vermont. He removed to Canada and spent some of his time in Canada, and the remainder in the United States, and it seeUlS he was sometimes on one side of the line and sometimes on the' other. This defendant was born in Canada, and came with his father to this country before he reached his majority.· The law is that children of citizens of the United States, who are born in foreign coun. tries, are citizens of the United States. We think it is probable that this defendant is a citizen of the United States. Tha:t is so unless the father became a citizen of Great Britain. Of that there is no doubtful. 1nall cases where there proof, and it is, to say the v.14,uo.7-24:
is doubt in a case of removal as to the jurisdiction of this court, it is safer to remand, because there is no: doubt, about the jurisdiction of the state court. The motion" to rel11andis sustained.
Sunto and others v. SIMPSON and others.·
(Circuit Oourt, D. Oolorado·. November 14, 1882.)
SUIT BY NON-RI3lSIDENT-BOND FOR COSTS.
Under the statutes of Colorado, a suit brought by a non-resident Of the state . must, on motion by defendant in apt time, 'be dismissed, unless bond for costs was executed and filed at the time of the commencement of the suit. To execute the bond two days after the action is instituted will not avail.
SAME-REMOVAL TO FEDERAL COUctT.
Though no bond for costs is required in of suit originally brought in the United States court,yet when a cause is removed from the state court to the federal court, the Jatter begins,where the former left off; and motion to dismiss for want:of bond for costs :having been entered il). the state eO,urt, and pending aqhe time of removal, will be heard in the federal court, and determined in accordance with the law applicable to the motion when made.
On Motion. to, Dismiss. . . ct. Liddell, for plaintiffs. ' J. Waltlheimer, for defendanh. HALLET'f, D. This actio,n wli.sbrought in the distriot court of county, on the day oiMay last, to ,recover tpe sum of $4,500. Concurrentlywith the sumroons,plaiIitiffstook out a writ ofattac.hment, was levied on defendants' goods, and, together with the sumJ1?ons, was served on defendants on that day, It is conceded, that plaintiffs then were, and still are, citizens and residents of the state of New York, and that at the time of bringingthe suit no bond for costs was filed, as required by chapter 20 of the Revised Statutes of the state. Two days later, and ontJ;ie twentyninth day of the same month, such a bond was filed and apprQ.vedby" the clerk, and on hut whether before or after the filing oithe cost bond is not shown, ," defendants entered a motion to dismiss \ for wal}tof .ar bond. :Q,uth!3first of Jtlne following, the, dause was removed into this "courton'iplaintiffs' petition,lletting up the necesfh.1ryfacts asto<the citiz;anship of the pllrties; and :defendants, not haying otharwjs.6 appeared, now:urge their the court.' are .qtted, the. ;reports ofy:this: state andfromr
.l!'rom the Colorado Law Reporter.