ARGUED AND DETERMINED
(Circuit Oourt. D. IOWtI. October 20. 1880.)
RmrOTA.Jr-WHEN RBQUISITlIl CITIZENSHIP MUST ExIS'l'.
A case cannot be removed. under the act of 1875. on the ground of citizenship, unless it appears from the record that at the time the suit was commenced the parties were citizens of different state..
.. 8AME-AMENDMENT OJ/' RECORD.
In such case, an amended transcript may be tiled. where the reoord in the state court did in fact disclose the requisite citizenship, under the statute. before the order of removal was made.
QtUlIf'C, whether such record of the state court can -be amenlied so sa to conform to the statute, where the term has passed "at which " by law the cause could be first tried" in the state court.-[ED.
Petition for Removal. On the third day of Februa.ry, 1880, the pla.intiff menced his action in the district court of Cherokee county, Iowa. Defendant appeared in the state court at the February term, 1880, and at that term the plaintiff filed his petition for removal to this court; v.6,no.l-l
In the District Court
0/ the State of Iowa,
in and for Cherokee
W. M. lUmsEB, Plaintiff,
V8. THE !LLmOlS CENTRAL .RAILROAD COMPANY, Defendant.
To 'aid District Court: Your petiti9ner respectfully represents that he is a resident of Polk 'county, in the state of Iowa; that the defendant, the Illinois Central Railroad Company, is a corporation duly and legally organized under the laws of the state of Illinois; that this suit is a suit at law, and of a civil nature, "ndthafthe'amount iridisprite exceeds, exclusive of costs, the sum of 'five hundred ($500) dollars; wherefore your petitioner prays that an order be made removing this suit to the United States circuitcorirt for the district of Iowa, in accordance with the provisions of section 639 of the Revised Statutes of the United' States. W. M. KAEISFrR,
IrAEISER V. ILLINOIS CENT. R. CO.
the question of the sufficiency of the petition for allJ requested their views in writing thereon. " These having been furnished, the question has beenfully considered by the full bench, with the result 'stated in the following opinion. ' A. B. ct J. O. Cummins and Berryhill ct Henry, for plainti,ff. John F. Duncombe, for defendant. MCCRARY, C. J. It was settled by the case of, Ins. 00. v. Pechner, 95 U. S. 183, that under the twelfth section of the judiciary act of 1789, embodied in section 639 of the Revised Statutes, a cause cannot be removed from a state ,to a federal court unless the petition for removal or the record of the cause affirmatively shows that at the time of the commencement of the suit the parties were citizens of different states. The right of removal was held to be statutory, and it was decided that before a party can avail himself of it, to oust. the jurisdiction of a state court, he must show, upon the redord, that his case is one which comes within the provisions of the statute., It is also clear, upon the authority of the case just cited, as well as upon well-settled principles, that the removal of the record of a cause from a state court into this court, where neither the petition for removal nor the record shows that the case is removable, is an utterly void proceeding, which neither confers jurisdiction upon this court nor takes it from the state court. Under the act above cited the fact of the citizenship of the parties at the time of the commencement of the suit is jurisdictional, and must in every case appear in the record. The fact that it may exist in pais is of no importance, since the court cannot look beyond the record to ascertain it, and, if it did, could not in that way acquire jurisdiction. That tb,e parties might have made a showing upon which the case could have been removed cannot avail them if they bave not in fact done so. The rule which requires that in the federal courts all jurisdictional facts shall appear in the record, applies with even greater force to causes removed from the state courts than to
those originally commenced in the federal courts. In causel removed the federal court must look to the record not only to ascertain whether it has acquired jurisdiction, but also to determine whet.her another court of co-ordinate powers has been deprived of it. If, therefore, this application to remove had been made under the provisions of said section 639 of the Revised Statutes, the insufficiency of the proceeding to confer jurisdiction upon this court would be very apparent. While the application states it is made under that section, we must suppose that this statement was inadvertently made, since by that section only the defendant can remove a cause on the ground of the citizenship of the parties, while, as already seen, this application is made by the plaintiff. We will therefore consider the application as made under the of March 3, 1875, which permits a removal upon the application of either party. Does this act, like section 639 of the Revised Statutes, require that the shall disclose the citizenship of the parties at the time of the commencement of the suit? The two statutes, so far as they bear upon this question, are not identical in phraseology, but are, I think, substantially identical in meaning. The language of the former is : "Any suit commenced in any state court · · - may be removed for trial, - - · when the suit is · · · by a citizen of the state wherein it is brought, and against a citizen of another state." The language of the latter is: "Any suit of a civil nature, at law or in equity, now pending or hereafter brought in any state court, - - · in which there shall be a controversy between citizens of different states, · · · either party may remove," etc. The words "any suit commenced," in the former act, which have been held by the supreme court to fix the time at which it must appear that the parties were citizens of different states, are identical in meaning with the words "hereafter brought," in the act of 1875. The phrases "any suit commenced" and "any suit brought" mean precisely the same thing. And so the language "when the suit is by a citizen of a state wherein it is brought, and against a citizen of another state," found in the former law, must, at least so far as the question now
JU.EISER 'V. ILLINOIS CENT. R. CO.
under consideration is concerned, be regarded as equivalent to that in the latter act-"a controversy between citizens of different states." The meaning in both cases is that the controversy must be between citizens of different states when the suit is commenced or brought. It follows that under the act of 1875, as well as under the previous law, a case cannot be removed from a state to a federal court, on ihe ground of citizenship of the parties, unless it appears from the record that at the time the suit was commenced the parties to it were citizens of different states; and, as this does not appear from the record in this case, the removal was unauthorized, and thia court has no jurisdiction. The plaintiff, anticipating this ruling, has moved the court for leave to file an amended transcript. It does not appear whether this is for the pur. pose of amending the record of the state court so as to con. form to the statute, or with a view to sho.wing, by a more complete transcript, that the record did in fact disclose the citizenship of the parties at the time of the petition for removal. If the latter is the purpose of the plaintiff, there can be no question as to the propriety of permitting the amendment, since it is without doubt his right to correct the transcript so that it will show all that appeared of record in the state court when the order of removal was made; but if the purpose is at this time to change the record of the state court soas to show the facts necessary to authorize the removal, a question of great doubt must arise as to the right of the plaintiff, in this way. and at this time, to bring his case within our jurisdiction. It is clear that, assuming that we have hefore us the com· plete record np to the present moment, the cause has not been removed. It has remained, in contemplation of law, pending in the state court. That court might have proceeded to final judgment, notwithstanding the proceeding by which a removal has been attempted. The order of the state court purporting to remove the cause did not divest that court of jurisdiction any more than a refusal to make such an order in a case coming within the law would deprive the federal
court of jurisdiction. The question then is, can the cause be now removed ?-for an amendment of the record at this time, so as to show the necessary jurisdictional facts, could be to a removal at this time. With respect to the time of removal, the statute provides that the petition therefor shall be filed in the state court "before or at the term at which said cause could be first tried/' This means, as has been repeatedly held in tbis circuit, the term at which by law the cause could first be tried; not necessarily the term at .which the parties are ready for trial. If it be that this term has not yet passed, a removal is still permitted by the statute; Imt if it has passed, the question is whether it is not too late to remove the cause, either by a new petition or an amendment of the record. This question will not necessarily arise until the amended transcript is presented, and is therefore not finally passed upon. Leave is granted to file an amended transcript, if plaintiff still desires to do so, otherwise the cause will be remanded. MILLER, C. J., concurs.
v. Decker, 5 FED. REP. 385, and Beed-a v.
(Olreuit Court, E. D. New York. l!'ebruary 18, 188U
LIABILITY OF RETIRED PARTNER-NEW FIRM:.
In a suit in equity to charge the estate of a partner, who retired from the banking firm of Jay Cooke & Co. in 1871 and died in 1877, with the amount of certain deposits made with said firm in 1869Held, that where money is deposited with a banking firm which subsequently dissolves, and whose business is continued by a new firm, the liability of the members of the old firm continues, unless facts be shown from which an intentioll to accept the liability of the new firm in lieu of the liability c' the old firm can be fairly inferred. If such facts be shown, the liability of a retired partner will be held to have been extinguished
BUlE-ACCEPTANCE BY CREDITOR OF NEW FIRM-EvIDENCE.
That where a banking firm is dissolved, and the business is carried on by a new firm which has agreed to assume the liability of the old