108 U.S. 561 (1883), Gibson v. Bruce

Citation:108 U.S. 561, 2 S.Ct. 873, 27 L.Ed. 825
Party Name:GIBSON v. BRUCE.
Case Date:May 07, 1883
Court:United States Supreme Court

Page 561

108 U.S. 561 (1883)

2 S.Ct. 873, 27 L.Ed. 825




United States Supreme Court.

May 7, 1883

Appeal from the Circuit Court of the United States for the Southern District of Ohio.


[2 S.Ct. 873] Thos. McDougall and Hoadly, Johnson & Colston, for appellant.

T. D. Lincoln, for appellee.


Page 562


In this case the court below decided that under the act of March 3, 1875, c. 137, there could not be a removal to the circuit court of the United States of a suit in a state court between parties who were citizens of different states when the suit was begun, if, when the petition for removal was filed, the parties were all citizens of the same state. To reverse an order remanding a suit on that ground, this appeal was taken.

[2 S.Ct. 874] Under the judiciary act of 1789, (section 12,) it was held, in Inc. Co. v. Pechner, 95 U.S. 183, that there could not be a removal unless the necessary citizenship existed when the suit was begun. That act provided only for a removal on the application of the defendant when the plaintiff was a citizen of the state in which the suit was brought, and the defendant was required to file his petition for removal at the time of entering his appearance in the state court. Under such circumstances changes of citizenship, after the suit was begun and before the time for applying for a removal, would not often occur.

The act of 1875 is radically different from any which preceded it. Under that act either party may petition for removal, and neither party need be a citizen of the state in which the suit was brought. The material language is as follows: 'That any suit of a civil nature at law or in equity, now pending

Page 563

or hereafter brought in any state court, * * * in which there shall be a controversy between citizens of different states, * * * either party may remove said suit into the circuit court of the United States for the proper district.'

In order to obtain the removal a petition therefor must be filed in the state court at or before the term at which the cause could be first tried, and before the trial. In the present case the petition was not filed until nearly two years after the commencement of the suit.

The construction of the act is by no means free from doubt, but on full consideration we are of opinion that the requirement of the old law, that the necessary citizenship should exist when the suit was brought,...

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