CURTIN V. DECKER.
CURTIN 17. DEOKEB.
(Circuit Uourt, E. D. WiBconBin. January, 1881.)
1.· REMOVAL-WHEN REQUISITE MuST ExIsT. A cause maybe removed under the act of 1876 if the required citizenship exists at the time the petition for removal was filed.
The petition for removal, made by the complainant, alleged that at the date of the petition she was a citizen of the state of Illinois, and that the defendant was a citizen of the state of Wisconsin. The defendant moved to remand, on the ground that the petition for· removal did not show that the parties were citizens of different states at the time the action was commenced in the state courts. Beld, that the motion to remand must be overru,led.-fEo.
In Equity. Motion to Remand. Murphey If Goodwin, for complainant. A. G. Weissert, for defendant. DYER, D. J. This is a case removed from the state court. The petition for removal was made by the complainant, and alleges that at the date of the petition she was a citizen of the state of Illinois, and that the defendant"was a citizen of the state of Wisconsin. The defendant now moves to remand the case on the ground that the petition for removal does not show that the parties were citizens of. different states at the time the action was commenced in the state court. The removal of the case to this court was under the act of March 3, 1875, (18 U. 8. St. at Large, 470, 471.) The question involved is, therefore, whether the right to remove a case, under that act, from the state court to the federal court, is dependent upon the citizenship of the parties at the time the action was commenced in the state court. In the case of Rawle v. Phelps, 9 Cent. L. Jour. 46, the learned district judge of the eastern district of Michigan, in a carefully-considered opinion, held that to authorize a. removal to the federal court, under the act of 1875, the requisite citizenship must have existed at the time the suit was commenced in the state court. The question, it is understood, has not been decided by the supreme court. It was alluded to in the opinv.5,no.5-25
ion in Insurance 00. v.Pechner, 95 U. 8. 183. but was left undetermined, as that case only involved a construction of the act of 1789. The case would be truly exceptional in which I could ever differ from the learned and able judge who Rawle v. Phelps, without hesitation. ' But, upon the present question, I am constrained to take a different view of the statuto from that which he has adopted. It must be admitted that the ,question is not free from difficulty,but I am unable to avoid the conclusion that by the language used in sections 2,3, and 5 of the act of 1875, it was intended to givetopartles the right or removal in case the requisite citizenship existed at the time of the application for removal." ThisB'eeIns to me to be the most reasonable construction of the statute, and the weight of authority appears to sustain that view. Putting the second section of the act into grammatical form, it provides that [if in] any suit of a civil n!1ture, at law or in equity, now pending, or hereafter brought in a:q.y state court, where the matter in dispute ex. ceeds, exclusive of costs, the sum of $500, there shall be l' controversy between citizens: ·of different states, either party may remove said suit into the circuit court of the United States for the proper district. It appears, therefore, that the was intended to apply to all. causes pending at the time the act was passed, withoQ,t reference to the fact whether the federal court would hiwe had jurisdiction at the time the suit was commenced in the state court or not. If that is the true rule as to causes pending at the time of the passage of the act, the inference seems very strong that it is applicable to causes thereafter brought in the state court. And it is not to be overlooked that the whole language of the act of 1875, in this respect, is very differentfrom that of the act of 1789. By the terms of that act the right to remove a cause was dependent upon the existence of the requisite citizenship when the suit was commenced. There is no language to that effect in the act of 1875, and the argument, from the fact that the words used in the act of 1789 have been dropped in the act of 1875, seems very strong in favor of this view of the question, and such view also acquires additional force from
,f, :', ,C' :'::l ..1
an examination of the fifth section of the act, which provides that if, in any suit removed Jrom a state court to oourt of the United States, it shall appear to the satisfact,ion of said circuit court, at any time after suit has been · · · removed thereto, that such suit does' not really and sl;l.bstantially involve a dispute or controversy properly within the jurisdiction of said circuit court," the suit shall be dismissed or remanded to th'3 state ,court. Thus "dispute or controversy" is spoken of in the present tense; that is, at the time the court considers the question, after the cause has been removed. I forbear to enter further upon So discussion of the question, since it has been so fully considered by other .federal judges, whose opinions are entitled to great consideration. See J ackson v. The Mut. Life Ins. Co. 3 Woods, 413; McLean v. The St. Paul rl Chicago Railway Co. 16 BIatchf. 309; and Chicago, St. Louis N. O. R. Co. v. McComb,\) Rep. 569. In Johnson v. Monell, 1 Woolworth, 390, Mr. Justice Miller held that under the act of 1'867, for the removal of causes, the right of removal was not limHed to parties who were citizens of different states at the time the suit was commenced, and that, at least by the strongest implication, it provided otherwise. As the language Of the act of 1867 is in substance like that of the act of the construction put upon the former act by Mr. Justice Miller is strongly: applicable to the statute of 1875. In McGinnity v. White, 3 Dill. 350, which was It case removed under t.he act of 1866, Judge Dillon cited Johnson v. , Monell as authoritative, and, speaking of the acts of i866 and 1867, said: "As both acts givetbe right to apply for the removal at any time before the 'trial or final hearing of the cause, I can see no difference, in this respect, be.tween the act of 1866 and the act of 1867·; and the reasolling in the seems to be here, case cited (Johnson v. and to fav.or the right of removal/' And, although pending the action in the state court the defondap,t had removed froJ:n, the state of which both parties: were c,itizons when the action: was commenced, Judge Dillon sustained the right of removal.
The view taken of the question by Judge. Woo<1s and J'udge Blatchford, in the cases cited, (3 Woods, 413; 16 Blatchf. 309; and 9 Rep. 569,) has also been adopted by the Bupreme conrt of Georgia in Jackson v. The Mut. Ins. Go. 60 Ga. 423, and by the court commission of Chio in Phcenix Life Ins. Go. v. Saettel, 7 Cent. L.Jour. 398. I hold, therefore, UP0J;l what 1 regard the weight of author· ity, and as, a correct interpretation of the act of 1875, independent of authority, that the right of removal under that act is not dependent upon citizenship when the suit was commenced in the state court, but that if the requirei citi. zenship exists at the time the petition for removal is filed in the state court, that is sufficient. Motion to rema:J;ld overruled.
See BfAjde v. OhfAjney, i'TI/rlS.
BEEDE v. CHEENEY and others.
(Circuit Cowt, D.Min'IUJ8otfJ.
R!moVAL--BOND APPROVED BY STATE OOURT.
In a case of removal the jurisdiction of the federal court does not depend upon the form or substance of the bond approved by the state court.
BAME-WHEN REQUISITE CrrIZENSHIP MUST ExIST.
ground that the petition was in the present tense.-[ED.
Motion to Remand. M. O. Little, for plaintiff. A. Oppenheim and W. P. Warner, for defendant. MOClU.RY, C. J. In this case there is a. motion to remand on the ground that the bond accepted by the state court to secure the filing of the transcript in this court, and the payment 01