r-:AT. BANK OF NEW YOI:I{ t1. BROWN,
161
MERCHANTS' NAT. DANK OF NEW YORK V. BnOWN.1
(Oircuit Oo-urt, E. D. LOllisiana.
June, 1883.)·
1.
OF CARF:S. The petition for removal mnot aver tllut tl,e parties nrc citi7ens of anoUler state; un averment that tIwy are residents of another staLe is not sutlicient. JUI:ISDICTION.
2.
As the jurisrliction of the state court has never heen lawfully divesterl, it, follows that tllis court has never acquired jurisdiction. The case has never lH'cn removed from the slate eourt to tid" eourt. It cannot, tlwrdore, Le reLlunded, Lut all procecdJllgs in Lllis court wil1Le dislllis.:;eu,
On Hotion to Rrmand. E. J{owm·d McCaleb, for plaintiff. John flay, for defendant. PARDEE, J. In this case the court notires from tl1e recorrl and supplemental record the following proceeJings in the state court:
(1) That a jl1rlgment by defalllt was entered against defendant on the tenth day of Febrllary, Itlea; (:!) that the petitioll for removal was presellted and flied on the thirteenth day of Fehrllary, and the application refllsed on the same day; (:3) it final jlldgillent was rendered confirming the dpfalllt, Feb'lIary 14, 18e3; (4) an answer, plpading the gPlleral denial, was filed Febrllary 15, HiSS, but without asille tile defalllt or the (illal jlldgillent of confirmation rellderetllhe day previous; (5) 011 the fiftpellthof Fehruarya motion for a new trial was mal!e; (li) on the twentieth of Fehruary, loea, the petition for certiorari was preseuted to this court, the order iSSilell, and 011 tlte twentyser'OIH! of February. 1883, this petition was filel!' In this petition for certiorari, presented aud filed after tIle trial of the cause allll rendition of judglllellt in the state court, is the first averlllent of the defendant's citizenship.
It is admitted that neither in the record nor in the petition for removal is there any averment whatever of defendant's citizenship, showing that either (1) at tile time of the commencement of the action, or (2) at the time of the application for removal, she was a citiZen of a different state from the plaintiff. Beede v. Cheeney, 5 FED. REP. 388; Kaeiser v. Ill. Cent. 1l. Co. 6 FED. REP. 1; Smith v. Horton, 7 FED. REP. 270; Sherman v. 1tIanllf'g Co. 11 FED. REP. 852. The petition for removal must a vel' that the parties are citizens of another state; an averment that they are residents of another state is not sufficient. Parker v. Overman, 18 How. 137; Bill.Qlwm v. CaLot, 3 Dull. 382; Abercrombie v. Dupuis, 1 Cranch, 343; Wood v. IV"gllon, 2 Cranch, D. It being conceoed that the requisite showing not having been made either in the petition for removal or in the record, it is clear that state court properly refused to surrender its jurisdiction on thtl fact:> und pleadings appearing before it. Ineported by Joseph P. llornor, Esq., of the New Orleans bar.
v.17,no.3-11
FEDERAL REPORTER.
"This right of removal is statutory. Before a party can avail himself of it he must show upon the record that his is a case which comes within the provisions of the statute. His petition for removal, when filed, becomes a part of the record in the cause. It should state facts, which, taken in connection with such as already appear, entitle him to the transfer. If he fails in this, he has not, in law, shown to the court that it cannot' proceeu' further with the cause.' Having once acquired jurisdiction, the court may proceed until it is judicially informed that its power over the cause has been suspendeu. * * * This certainly is not stating affirmatively that such was his citizenship when the suit was commenced. The court had the right to take the case as made by the party himself, and not inquire further. If that was not sufficient to oust the jurisdiction, there was no reason why the court might not proceed with the cause." Ins. Co. v. Pechner, 95 U. S. 185, 186. "Holding, as we do, that a state court is not bound to surrender its jurisdiction upon a petition for removal until, at least, a petition is filed, which, upon its face, shows the right of the petitioner to the transfer, it was not error for the court to retain these causes." Amory v. Amory, 95 U. S. 187. "A petition for the removal of suit from a state court to a federal court is insutficient, unless it sets forth in due form such as is required in good pleading. the essential facts not otherwise appearing in the case, which, under the act of congress, are conditions precedent to the change of jurisdiction." Gold Washing d': Water Co. v. Keyes, 96 U. S. 199. "'Ve fully recognize the principle heretofore asserted in many cases, that the state court is not required to let go its jurisllictioll until a case is made which, upon its face, shows that the [J2titioner can rcmo\'e the'cause as a matter of right." Removal Cases, 100 U. S. 474.
As the juriHdiction of the state court has never been lawfully divested, it follows that this court has never acquired jurisdiction. The case has never been removed from the state court to this court. It cannot, therefore, be remanded, but all proceedings in this court should be dismissed, and such an order will be entered, with costs. See Glover v. Shepl)erd, 15 FED TIEP. 833.
RANDALL
v.
VEXAELE.
(Circuit Court, lV. D. Te.w8. 1. DISTRICT
lEE3.)
Congress h:1S not conferred power upon the district :111(1 circuit courts of the Unitecl t\tates to m:1ke rules the mode of taking testimony. L.\w,
UmCL'IT COURT-RULES AS TO TAKIXG TESTDroXY,
S,UIE-DF.POSITIOXS TAKEX ACCOHDl:>G TO t\T,\TE
Depositions tal,en according to the mode prescrihed b.\' the ,t:1tutes of a state, for the takin!'; of (lepos:tio!b are not admi,;sihle in eVidence, in a circuit court of the United States, whell the statel:1w !';O\'ernin:! the sallle conflicts with the provisions of the act of congrcss in relation thereto.
'jIotion to Suppress Depositions. A. J. Em1l8, for motion. Walton ((. Hill, opposed.