CURNOW

t.

PHCENIX

HiS.

CO.

805

CuRNOW v. PH<ENIX INS. CO.

(Circuit Court, D. South Uarolina. December 11, 1890.)
RBMOVAL OF CAUSES-MoTION TO REMAND.

Where a cause has been removed from a state to a federal court upon defendant's petitioll, alleging diverse citizenship, plaintiff's petition to remand, denying the allegation of diverse citizenship, will be treated as a traverse of the petition to remove, and the motion to remand will be decided upon the trial of the issue thus made.

At LaW. Motion to remand. J. N. Nathans, for plaintiff. J. P. K. Bryan, for defendant. SIMONTON, J. This action was commenced in the state court. It has been removed into this court upon the petition of the defendant solely upon the allegation of diverse citizenship. The plaintiff thereupon filed in this court her petition, in which she denies diverse citizenship, and alleges that she is a citizen of the state of Connecticut, under whose laws the defimdant was incorporated. She now moves to remand the cause to the state court. The defendant excepts to this mode of proceeding, and insists that the motion to remand admits the facts set out in the petition for removal. Counsel relies on the cases of Buttner v. Miller, 1 Woods, 620, and Texas v. Railroad Co., 3 Woods, 308; that the only mode of obtaining the relief sought is by plea in abatement, (Coal Co. v. Blatchford, 11 Wall. 178,) or a tra\'erse of the allegation of citizenship. Whatever may be the result of a motion to remand unsupported by petition or affidavit, the present is not that case. The plaintiff has filed her petition, denying the statement of the defendant as to the citizenship of the parties, and, alleging that both the plaintiff and defendant are citizens of the same state, bases her motion on these facts. She challepges the jurisdiction of this court, and gives the ground for the exception. Under these circumstances it is the duty of the court to examine into the question. King Bridge Co. v. Otoe Co., 120 U. S. 225, 7 Sup. Ct. Rep. 552; Morris v. Gilmer, 129 U. S. 316, 9 Sup. Ct. Rep. 289; 18 U. S. St. at Large, 472; Nashua &- L. R. Corp. v. BosUYn &- L. R, Corp., 136 U. S. 373, 10 Sup. Ct. Rep. 1004. The issue is made up from contradictory statements made by the parties. Let the petition to remand be filed, and be treated as a traverse of the petition to remove, and let a day be set for the trial of the issue made. V .44F.no.5-20

J'EDEBALREPORTER,

vol 44.

NmLoCK et al.

11.

ALEXANDER' et

at

(CwcuU Oowrt, D. Indiana. December 10, 181lO.)

L

1bI:MOTAL OJ' CAUSES-LoOAL INPL1l'IIlNO_AnomAVIT.

'The aflldavit. of defendant's attorney for the removal of a cause from a state to. federal circuit court, couched In the general terms of the IItatute. with the addi'tl.ilnal averment "that amant knows the facts of such prejudioe andlooal influence, and makea tbill, affidavit from lIuch knowledge," is lDsufflcient under Act Congo March 8,1887, requiring that "it shall be made to appear" to the circuit court that such prejudice or local influence exists. Under that act, permitting the removal, when there Is a "controvel'llybetween · citizen of the state in which the suit is brought and a citizen of another state, " · removal cannot be had when the suit is brought in Indiana by two plainWfll, one · citizen of Illinois, and the other of Indiana, against a oitizen of Texaa.
,

.. SAME-DIVERSE CITIZENSHIP.

At Law; ,On motion to remand. Ola'!IPool &- Ketcham, for plaintiffs. L. B. Swift, for defendants.
, WOODS; J. This cause was removed, from the state court upon the petition of the defendant John S. Alexander, who is a cltizenofTexas, ,bis co-defendants being one of them, a citizen of Pennsylvania and the other:a Citizen of Indiana. Of the 'plaintiffs, Niblock is lL citizen of Illinois'and Zimmerman of Indiana. The suit is to enforce an arbitration bond exeouted by the defendants Mtheplaintiffs. and the plaintiffs'are jointly and equally interested in the, relief sought. The removal was ,obtained upon the ground of prejudice and local influence., Aside from tbecitizenship of the parties, the proof of prejudioe or local influence can hardly be deemed suffioient. There is conflict in the decisions on the subject, but the opinion of Justice HARLAN, as declared in v. Railroad, Co., 35 Fed. Rep. 625, is controlling in this circuit. After reviewing the statutes; he says: "I am of opinion that congress did not intE'nd to vest the cfrcuit coutts of .States with autbority to take cognizance ofacase pending in ,the a lItate court upon the grQllnd of prejudice or local influence against the de'fendant, a citizen of another state, unless, the circuit court, in some proper found as a fact that such prejudice or local influence existed. And the simple affidavit by an officer of a defenda'1t corporation, stating in general 'terms that it cannot. from prejudice orloc,al' influence, obtain justice in the state oourls,-no opportunity having been given to the plaintiff, by notice, statement,-ought nQt to be accepted as sufficient evidence , ,: . '' " , :, ', of that fact. " For cases touching the question, see Cooper v. Railroad Co., 42 Fed. Rep. 697. The affidavit in support of the petition for removal of this cause was made by the petitioner's attorney, and is in the general terms of the statute, except that it contains the statement "that affiant knows the facts of such prejudice and local influence, and makes this affidavit from such knowledge.» But this necessarily is only an expression of opin, ion, and, without a statement of facts to justify it, means no more than if the affidavit had conformed to the of the act of March 3,