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IRVING v. SMITH et al.

(Circuit Court, D. Oregon.

August 4, 1904.)

No. 2,848.

1. Removal of Causes — Nonbesidence of Defendant — Sufficiency of Allegation.

An allegation in a petition for removal that defendant is a citizen of a state other than that in which the suit is pending is not equivalent to an allegation that he is a “nonresident of that state” and does not show his right to a removal.

¶ 1. Averments of citizenship to show jurisdiction of federal courts, see notes to Shipp v. Williams, 10 C. C. A. 261.

See Removal of Causes, vol. 42, Cent. Dig. § 170. .

On Motion to Remand to State Court.

U. S. G. Marquam, for plaintiff.

J. H. Middleton, for defendant L H. Imus.

BERRINGER, District Judge.

This is a suit begun in the state court against the defendant O. M. Smith and P. H. Marlay. After the suit was commenced the defendant I. H. Imus succeeded to the rights and interest of Marlay in the subject of the controversy. The cause was removed to this court upon the petition of Imus, from which it appeared that Marlay was at the time the suit was begun, and still is, a citizen of Nebraska; that the petitioner, Imus, is a citizen of the state of Washington, arid a nonresident of Oregon, and that the controversy is a separable one as to the petitioner. The plaintiff, who is a citizen of Oregon, now moves to remand the cause upon the ground that, notwithstanding the averment in the petition for removal of Marlay’s citizenship, it does not appear that he was and is a nonresident of Oregon. Section 2 of the act of 1887 (Act March 3, 1887, c. 373, 24 Stat. 552 [U. S. Comp. St. 1901, p. 509]), as amended by the act of 1888 (Act Aug. 13, 1888, c. 866, § 1, 25 Stat. 433 [U. S. Comp. St. 1901, p. 509]), after providing for the removal of any suits arising under the Constitution or laws of the United States or treaties made under their authority, etc., provides that “any other suit of a civil nature at law or in equity, of which the Circuit Courts of the United States are given jurisdiction by the preceding section, * * * may be removed into the Circuit Court of the United States for the proper district by the defendant or defendants therein being nonresidents of that state.” The allegation that the defendant is a citizen of another state is not the equivalent of an allegation of nonresidence here. “Citizenship” apid “residence” are not synonymous terms.' Parker v. Overman, 18 How. 141, 15 L. Ed. 318. A person may reside in one state and be a citizen in another. Evans v. Davenport, 4 McRean, 574, Fed. Cas. No. 4,558. In Brown v. Keene, 8 Pet. 112, 8 L. Ed. 885, a case frequently cited and followed, it is held, Chief Justice Marshall delivering the opinion, that an averment that the defendant is a citizen or “resident of the state of Rouisiana, holding his *208fixed and permanent domicile in the parish of St. Charles,” does not show that the defendant is a citizen of the state of Louisiana. Citizenship is not conclusive of residence. Black’s Dillon on Removal of Causes, § 79.

The motion to remand is allowed.

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