374 , ,I,'
FEDERAL REPORTER; .
NOTa
.
REMOVAL OFCAUSES-CITIZENSmP OF P;&B";IES-AQT :M:AI\l;s:8, 1887. Under act Congo March a, 1887, deftning the jurisdiction of 'federal courts, which provides that when jurisdiction isfounQ.ed on the fact that 1ihe l/.Otion .is between citizens of. different states. suit shall be brought only in.the district where either the plaintiff or defendant resides, an action brottghtin the state court of plaintiff's' district against a non-resident defendant may b.e to the federal court by the. defendant, Tiffany v. WHee, Fed. Rep. 280; and he may remove it to the federal court of the district of which plaintiff is a resident, Mining Co. v. Markell, 33 Fed. Rep. a86i Swayne v. Insurance Co., ante 1. But a defl'ndant cannot remOve a cause brought a state court of the state of his residence. Anderson v. Appleton, 32 . Fed. Rep. 855; Weller v. Tobacco Co., ld. 860.' . . '. ForeigncorporationBsued in a state court by a citizen of the state have a right to remove the cause: under thestatute.. Wilson v. Telegraph Co., Fed. Rep. 561; County Court v. Railroaa Co., QIl'Lte, 161; Railroad Co. v. Foi'd,Td. 170·
JOHNSON
v.
ACCIDENT
INS·. CO. OF NORTH A.MERICA. June 19, 1888.) IN AnATEM1IlNT TO '
(OirlJ'Uit (hurt. W; D. J/.ichigan. RBUOVAL OF PETITION BOlt REMOVAL.
A plea in abatement to a petition to remove a caSe from a state to a federal court will not be tested by technical rules, but it is sufficient if it sets out fairly and with sufficient certainty matters of fact which, If"tr'ue, negative the juris'. . . diction .of the federal court. I
'At Law. ',On demurrer. , . Action Qrought by Gertie Johnson in a state court against the Aooi.. dent Ins",ranceqompany of North America. ,The cause was then removed to the circuit court of the United States ,for the Western district: of Michigan ona petition of the defendant alleging that plaintiff was a citizen of the state of Michigan, and defendant a. corporation organized and existing under the laws of the dominion of Canada·. Plaintiff then filed the fqllowing plea, in nature of a in abatement, to the pe. .. And. the said Gertie Johnson, plaintiff in this suit,by Wheeler, Bishop & Blodgett. hetattorneys, comes, and prays judgment of the said defendant's petition for tbe removal of this cause from the circuit court for the county of Mason, state of Michigan. to this court. anti whether this court will further retain jurisdiction of this cause, beC!1use she says that,at the time before the commencement of her said action in the said circuit· co.urt for the comity of Mason, she, the said plaintiff, was a citizen of Finland, and a subject of the czar pt, Russia. and that sbenever was a citi7.en of the state of Michigan. nor R any of the states ()r territories of tbe United States; and, further, that the said defendant, at the .time of the commencement of said suit as aforesaid, and ever since, has been and now is a foreign corporation formed and existing under and by virtue olthe laws .of the dominion of Canada, as appears from said defendant's petition for the removal of this cause to this court; and this the said Gertie Johnson is ready to verify. Wherefore she .' 'As to pleading and procedure on removal of causes, see Railroad Co. v. Ford, ante. 170; Larson v. Cox, (Kan.) 18 Pac. Rep. 892, and note.
JOHNSON. tI. ACcp)ENT llj'S. CO.
375
prays judgment as aforesaid; and that this cause may' be remanded to said circuit courtforthe county of !(ason. 'GERTW JOHNSON. U WHEELER, BrsJIoP&:; BLODGET'l', Attorneys for Plaintiff." (Duly vedfied.)
To this plea defendant filed the following demurrer: .. And the saiil defendant, by Baker &:; Clark, its attorneys, saitb that the said. plah.Ititf'8l?lea to this court's further retaining jurisdiction of said caUl'le, and the matter In said plea contained, in mannei' and in form as .the same are therein pleaded and set forth, are not sufficient in law to entitle said plaintiff to jUdgment upon said defendant's petition, (for the removal of said cause to this, court, )'and f'Or the remanding of said cause to. the circuit court for the count,}" fit Mason, and that the said defendant is not bound by the law of the land to ansWer the same; and this it is ready to verify, And the said defendant states andsb6ws to the court the following causes of demurrer to the said plaiiItift's plea, viz;: (1) Because the said plea of the said plaintiff to the juJflsdictioll of this court is not pleaded by said plaintift in her own proper person, but by her attorneys; (2) because the said plaintiff's said plea states no new as facts not contained in defendl\nt'spetjtion,except in COntradiction said petition contained, and hath notconcludEl(l her said plea putting herself. upon the country; (3) because it doesDot appear from 'said plea that the circuit court for Mason county has jurisdiction ofsaidcause,or of the parties thereto; (4) because it does not appear from said plea what court has jurisdiction of said cause, and over the patties thereto; (5J because it appears from silid plea that the circuit court for Mason county and of the parties thereto; (6). it is has not jurisdiction appear by said plea that the circuit court for Mason CI)\1oty has over subject-Ulatter of said suit, and bas obtained jurisdiction over the p&rties thereto; and also that said plea is in other resp6'cts uncertain, iufot'mal, and insufficient. Wherefor, bY"reason of the insufficiency of said plea in this'be}jalf, the said defendant prays for jUdgment that this court 'further retain jurisdiction of this cause. . "BAKER & CLARK, Attys. fQr Deft....
lJi'heeler, Bi8hop
&;
Blodgett, (Fletcher &; Wanty, of counsel,) for plaintiff.
Baker &; Clark, for defendant, SEVERE:NS, J., (oraUy.) This cause was instituted in a state court, and was thence removed upon the petition of the defendant, setting forth, among other things, that, at the time of the cOIlUl1encement of this suit, the plaintiff was a citizen of the state of Michigan, and the defendant a c9rporationorganized and existing under the laws of the dominion of within the Canada, having its principal office in said dominion, and the of congress, a citizen of the said dominion of Ca.nada. In due season the transcript was filed in this court, and within a short timetbereafterthe to the court, by motion, (based upon affidavii$ to establish. the fact that she Md never been a citizen ofthestateofMichigan, but, on the contrary, had always been an alien, and a of the czar of Russia,) for an order'renIanding the cause to thestate·court. Upon the that application, I ruled that the disputed question of citizenship. 'disclosed by the petition for removal and the affidavits just referred to, could not properly be determined upon. bi:otiotl /' pot be tried upon affidavits j and I then indicated to counsel some:oftM various in ,such cases, wbicl(had
876
-
been by the fedeml courts, including that of filing a plea in the nature ,of a plea in abatemel1t to the petition for removal. Leave was then given the plaintiff to present the question thereafter in any appropriate way. Subsequently, the plaintiff, acting pursuant to such leave of c<;>Urt, filed in this cause her plea in the nature of a plea in abate.ment to said petition for removal, setting forth therein substantially the same allegations h,ercitizenship.as those contained in the affidavits .filed lnsu pport of her. motion to remand. The defendant plaintiff' has filed in the cause a joinhas demurred to that der in' demurrer; and the legal questions as to the sufficiency of the 'pleadings involved have been submitted to me by counselfor the respective parties upon briefs. In behalf of the defendant it is urged that the plea is not sufficient in matters of form when tested by the strict technical rules which at common law ,regulated in abatement. I do deem it necessary to determine whether or not this contention is well founded, for I am satisfied that this plea should not be tested by such rules. It is hot SllCh a pleading as should be looked upon with disfavor by the court, but is one which simply tenders an issue upon a material question of fact; and it fairly and with sufficient certainty sets forth allegationsas to mattersoffact which, if proven, would clearly negative thEl jurisdiction of this court. The function which such a plea performs is a substantive one, designed onlyfor bringing forward an issue of fact in which the other party may join, and so a tTial be .had.. An order overrulirig the dernurrer must therefore be entered. An opportunity, however, should be given the defendant to accept the 1ss1,1e tendered. Ten days will be .al1owed. in. w.hich the allegations of the plea as to the citizenship of the plaintiff may be traversed. In default thereoi an order will be entered remanding the cause.
SECOR
et al. ".
SINGLETON
et al.
(Oircuit Oourt, E. D;Mi88ouri, E. D. May 24.1888.)
1.
INJUrWTIoN-T6 PROTECT PRIVATE RIGHT-VIOLATION AND TERES'r OF PROSECUTOR.
Stockholders of a corporation obtained an injunction to restrain the levy of tlloxes on certain property of the alid subsequently filed an in· formation to have certain par.ties punished for coIitempt for Violating the same. It appearing that the property to which the exemption attached had beenllQld to another corporation under a decre.e of foreclosure since the injunction. and that the complainants had no further interest in the question of Its taxll);ion, held. that they' could not maintain the prosecution for contempt. Held, further, that if the complainants were also stockholders of the corporation whil;h had purchased the exempt property uQder the decree of lind the exemption followed the proJlerty into the hatids of the vendee. they might the prosecution notwithstahding the sale.
2
SAME.
