BAILEY 'V. AMERIOAN GENT. INS.
(Oircuit Oourt, D. IOwa.
JURISDICTION'OF THE CIRCUIT CoURT-REMOVAl. OF CAUSES-ACT OF 1875.
This court has jurisdiction, under the act of March 3, 1875, of a suit removed here from a state court on the petition of the defendant, where the suit was originally brought in the state court, appearance entered therein for the defendant at the first term,petition for removal presented, and the requisite bond tendered, without anY' other pleading being filed.
:::. "CONTROVERSY "-PRESUMPTIONS.
Where nothing appears to the contrary, it will be presumed, from the fact that a suit has been commenced, that there is a "controversy" between the parties..
This is an actionti> recover damages upqn a policy of insurance, c,rid was originally instituted in the circuit court of Lee county, Iowa. defendant, a non-resident. corporation, in the state court at the first term after' the commenc.ement. of the suit, and, 'without filing any other pres(mted'its petition for a removal 'bf the cause to this court. th,e petition for removal the following statements appear: " ., ,
"Your petitioner, the defendant, would respectfully show the court that the matter arid amount in dispute in the abov&-entitled .cause exceeds, exclusive df costs, 'the sum of$500j that the controversy in: sajd suIt is between citizens of ditferent states j and' that the petitioner was,atthe commencement of,this suit,and still is, a citizen of the state of Missourij and that the said -}ioah Baileyw3st4ell, and still is, a citizen of lows."
Good and suffi.cient bOJ!ld being tendered, the state court sustained
the motion. iioremove the cause, and the record has acco:udingly been
,tiled in this court. The: plaintiff moves to remand, upon' the ground ,that, at the titne of tbeJiLingof the petition for the removal in the state court, there was no controversy between the parties. Hagerman, McOrary d Hagerman, for plaintiff. J Fulton tf Fulton, for deftlndant. MCCRARY, C. J. Thea-ct ·of congress of March 3, 1875, under -which this ,case was remQ\ted, provides for the remova.l of causes '''where, the matter ill dispute exceeds, exclusive of: costs, the sum or ,value oL$9:00, lit lit lit in which there shall be a controversy beof different states." It is insisted by the counsel for plaintiff that inasmuch as no answer or demurrer was filed in the state court, and no issue joined, we are bound to presume that there was no controversy in the case. That there must be a controversy in order to authorize the removal, is, of course, clear; and if it appears affirmatively from the record that there was no contI then the
cauge should be .. Keith v. Levi, 1 McCrary, 343.'" But we are inclined to think that, where nothing to the contrary appears, the court oughi to' presume, from the fact that' a: suit hasoeen com- ,menced, that there is a controversy between the partiesi If the defendant has made a default, or if, having appeared, he ·has admitted the justice of the plaintiff's claim, in either case there is no controversy; but where the plaintiff has brought his suit and the defendant has appeared, and, not being in default for want of pleading, has petitioned for a 'removal, under the act ofc611gress, we think we are bound to presume that there is a controversy. The, presumption in every case is, where a suit is brought, that there is a, controversy. between the parties, unless the contrary appea:dropl the re,cord.. This' was view of the subject evidently taken by eongress in the: enactment of the thIrd, section of thelict above cited. 'By that section it is provided- : '
"That whenever either party, or anyone or more of or ants entitled to'remove any suit mentioned in the next precedin'g'section, shall desire to remove such suit from a state court to the circuit coort'of the United States, he or they may make and file:a petition in such suitinrsuch state court before ,or at the term at which said cause could be fir!lt tried,"
In very few; if in any, of the states of the Union are there aiIy, statutes authorizing the filing of an 'answer before the first term;r There is no stich statute in this state, and, inaslIluch astne: Ilict of congress expressly authorizes the petition for removaLtllbemade' before the term at which the case could be first tried, it,followsdliat the petition may, in many cases, be prese'nted before' anyauswer or demurrer is authorized to be filed. Besides,; we are both of tbe" opinion that it affirmatively appears from thiS record that there iss versy. The petition' for removal distinCltly' sO' states, ,and: it is aworn to. There is certainly nothing inthestatriterequiring thatthe of a controversy' shall appear either by an answer' demurrer. "If it appears from the record, whetMr by the petition for;removalor otherwise, it is sufficient. The case of Stanbrough v. G'I'ijfin, 52: Iowa, 112,'is relied upon by the counsel for plaintiff. In: that case Rothtock,J.,expYesses the opin. ion that a removal is not authOrized in a ca;se where there is,no answer or demurrer, and the record does n:otshow' that there iSa controversy between the parties. The question whether the petition for removal was sufficient to' show the controversy, was not considered in t:hat case; and, indeed, the point was not necessary to-be decided;
*8. C. 2
and the remarks of the judge cC?ncerning it are dicta. Notwithstanding our high regard for the supreme court of Iowa, we are unable to concur in the view expressed by Rothrock, J., on this question. The motion to remand is overruled. LOVE, D. J., concurs.
MOSELY and others.
(District Oourt, D. Oolorado. July 25, 1881.)
Where property under seizure is delivered to a claimant on hill giving a bond conditioned that he would pay the value of the property into court if it were condemned as forfeited by the final decree, held, that the liability of sureties on the bond is fixed on the rendering of such a decree, though the libel on which' it was rendered was amended subsequently to the execution of the bond.